Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON
SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S.
BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

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

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

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

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.7 Some scholars on the subject further use it to refer to
legislative control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

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

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

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

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they ‘being the representatives of
the people, either on their own account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President – the Public Works Act.17 In the
1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang Pambansa
had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports,20 it was under the SLDP that the
practice of giving lump-sum allocations to individual legislators began, with each
assemblyman receiving P500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the 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 P480 Million and P240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented23 that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA24 with an initial funding of P2.3 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 P12.5 Million each in CDF funds, while
Senators were receiving P18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

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

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President.29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the Vice-
President, P20 Million.
 In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition,
however, the Department of Budget and Management (DBM) was directed to submit
reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33

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

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

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad 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.38Examples 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 P250 Million of
the P500 Million allotted for the construction and completion of school buildings shall
be made available to NGOs including the Federation of Filipino-Chinese Chambers
of Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64(GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68 (the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69

G. Present Administration (2010-Present).

 Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President: Representatives were given P70
Million each, broken down into P40 Million for "hard projects" and P30 Million for "soft
projects"; while P200 Million was given to each Senator as well as the Vice-
President, with a P100 Million allocation each for "hard" and "soft projects." Likewise,
a provision on realignment of funds was included, but with the qualification that it
may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways to
realign PDAF Funds, with the further conditions that: (a) realignment is within the
same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the concurrence of
the legislator concerned.71

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

Provisions on legislator allocations75 as well as fund realignment76 were included in

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at P200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if
they have the technical capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the 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 P3.6 Billion for a Congressman, sparked public outrage."94

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

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some P10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts.97 Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
 Local Projects (VILP)100 by the DBM, the application of these funds and the implementation of
projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted
to P8.374 Billion in PDAF and P32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co 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 P6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.

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

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

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

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

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

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse
of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the
CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion
in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

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

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

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

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

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

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

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

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

The Issues Before the Court

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

I. Procedural Issues.

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

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

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

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

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

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

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case.118 Of these requisites, case law states that the first two are the most
important119 and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

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

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

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

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

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

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

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

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

xxxx

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

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

 xxxx

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

Solictor General Jardeleza: Yes, Your Honor.

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

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

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

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

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

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

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

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

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

B. Matters of Policy: the Political Question Doctrine.

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

The Court must deny respondents‘ submission.

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

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

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

C. Locus Standi.

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

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

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

D. Res Judicata and Stare Decisis.

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

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

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

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

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

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

II. Substantive Issues.

A. Definition of Terms.

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

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

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

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

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

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

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

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

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the 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,197 or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-
making authority to implementing agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
actual operation (contingent rule-making).199 The conceptual treatment and limitations of delegated
rule-making were explained in the case of People v. Maceren200 as follows:

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

xxxx

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

b. Application.

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

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

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

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

Sec. 27. x x x.

xxxx

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

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

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

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

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

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

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)

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

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

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

b. Application.

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

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

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the 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 P24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of P24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the 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.226Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

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

The 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."231Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork
Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the 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 P150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-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 P150,000,000.00" (also a determinable amount) "to finance the priority infrastructure
development projects and x x x the restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President of the Philippines" (also a specified
public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the P24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis
to the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development
and exploitation programs and projects of the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose
of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
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.247To 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."253In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since – similar to the
above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did
so in the context of its pronouncements made in this Decision – petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
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.
ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

710 SCRA 1 – Political Law – Constitutional Law – Local Government – Invalid Delegation
Legislative Department – Invalid Delegation of Legislative Power
This case is consolidated with G.R. No. 208493 and G.R. No. 209251.
The so-called pork barrel system has been around in the Philippines since about 1922. Pork
Barrel is commonly known as the lump-sum, discretionary funds of the members of the
Congress. It underwent several legal designations from “Congressional Pork Barrel” to the
latest “Priority Development Assistance Fund” or PDAF. The allocation for the pork barrel is
integrated in the annual General Appropriations Act (GAA).
Since 2011, the allocation of the PDAF has been done in the following manner:
a. P70 million: for each member of the lower house; broken down to – P40 million for “hard
projects” (infrastructure projects like roads, buildings, schools, etc.), and P30 million for “soft
projects” (scholarship grants, medical assistance, livelihood programs, IT development, etc.);
b. P200 million: for each senator; broken down to – P100 million for hard projects, P100
million for soft projects;
c. P200 million: for the Vice-President; broken down to – P100 million for hard projects, P100
million for soft projects.
The PDAF articles in the GAA do provide for realignment of funds whereby certain cabinet
members may request for the realignment of funds into their department provided that the
request for realignment is approved or concurred by the legislator concerned.
Presidential Pork Barrel
The president does have his own source of fund albeit not included in the GAA. The so-called
presidential pork barrel comes from two sources: (a) the Malampaya Funds, from the
Malampaya Gas Project – this has been around since 1976, and (b) the Presidential Social
Fund which is derived from the earnings of PAGCOR – this has been around since about
1983.
Pork Barrel Scam Controversy
Ever since, the pork barrel system has been besieged by allegations of corruption. In July
2013, six whistle blowers, headed by Benhur Luy, exposed that for the last decade, the
corruption in the pork barrel system had been facilitated by Janet Lim Napoles. Napoles had
been helping lawmakers in funneling their pork barrel funds into about 20 bogus NGO’s (non-
government organizations) which would make it appear that government funds are being
used in legit existing projects but are in fact going to “ghost” projects. An audit was then
conducted by the Commission on Audit and the results thereof concurred with the exposes
of Luy et al.
Motivated by the foregoing, Greco Belgica and several others, filed various petitions before
the Supreme Court questioning the constitutionality of the pork barrel system.
ISSUES:
I. Whether or not the congressional pork barrel system is constitutional.
II. Whether or not presidential pork barrel system is constitutional.
HELD:
I. No, the congressional pork barrel system is unconstitutional. It is unconstitutional because
it violates the following principles:
a. Separation of Powers
As a rule, the budgeting power lies in Congress. It regulates the release of funds (power of
the purse). The executive, on the other hand, implements the laws – this includes the GAA to
which the PDAF is a part of. Only the executive may implement the law but under the pork
barrel system, what’s happening was that, after the GAA, itself a law, was enacted, the
legislators themselves dictate as to which projects their PDAF funds should be allocated to –
a clear act of implementing the law they enacted – a violation of the principle of separation of
powers. (Note in the older case of PHILCONSA vs Enriquez, it was ruled that pork barrel,
then called as CDF or the Countrywide Development Fund, was constitutional insofar as the
legislators only recommend where their pork barrel funds go).
This is also highlighted by the fact that in realigning the PDAF, the executive will still have to
get the concurrence of the legislator concerned.
b. Non-delegability of Legislative Power
As a rule, the Constitution vests legislative power in Congress alone. (The Constitution does
grant the people legislative power but only insofar as the processes of referendum and
initiative are concerned). That being, legislative power cannot be delegated by Congress for
it cannot delegate further that which was delegated to it by the Constitution.
Exceptions to the rule are:
(i) delegated legislative power to local government units but this shall involve purely local
matters;
(ii) 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, or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.
In this case, the PDAF articles which allow the individual legislator to identify the projects to
which his PDAF money should go to is a violation of the rule on non-delegability of legislative
power. The power to appropriate funds is solely lodged in Congress (in the two houses
comprising it) collectively and not lodged in the individual members. Further, nowhere in the
exceptions does it state that the Congress can delegate the power to the individual member
of Congress.
c. Principle of Checks and Balances
One feature in the principle of checks and balances is the power of the president to veto items
in the GAA which he may deem to be inappropriate. But this power is already being
undermined because of the fact that once the GAA is approved, the legislator can now identify
the project to which he will appropriate his PDAF. Under such system, how can the president
veto the appropriation made by the legislator if the appropriation is made after the approval
of the GAA – again, “Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless.”
d. Local Autonomy
As a rule, the local governments have the power to manage their local affairs. Through their
Local Development Councils (LDCs), the LGUs can develop their own programs and policies
concerning their localities. But with the PDAF, particularly on the part of the members of the
house of representatives, what’s happening is that a congressman can either bypass or
duplicate a project by the LDC and later on claim it as his own. This is an instance where the
national government (note, a congressman is a national officer) meddles with the affairs of
the local government – and this is contrary to the State policy embodied in the Constitution
on local autonomy. It’s good if that’s all that is happening under the pork barrel system but
worse, the PDAF becomes more of a personal fund on the part of legislators.
II. Yes, the presidential pork barrel is valid.
The main issue raised by Belgica et al against the presidential pork barrel is that it is
unconstitutional because it violates Section 29 (1), Article VI of the Constitution which
provides:
No money shall be paid out of the Treasury except in pursuance of an appropriation made
by law.
Belgica et al emphasized that the presidential pork comes from the earnings of the
Malampaya and PAGCOR and not from any appropriation from a particular legislation.
The Supreme Court disagrees as it ruled that PD 910, which created the Malampaya Fund,
as well as PD 1869 (as amended by PD 1993), which amended PAGCOR’s charter, provided
for the appropriation, to wit:
(i) PD 910: Section 8 thereof provides that all fees, among others, collected from certain
energy-related ventures shall form part of a special fund (the Malampaya Fund) which shall
be used to further finance energy resource development and for other purposes which the
President may direct;
(ii) PD 1869, as amended: Section 12 thereof provides that a part of PAGCOR’s earnings
shall be allocated to a General Fund (the Presidential Social Fund) which shall be used in
government infrastructure projects.
These are sufficient laws which met the requirement of Section 29, Article VI of the
Constitution. The appropriation contemplated therein does not have to be a particular
appropriation as it can be a general appropriation as in the case of PD 910 and PD 1869.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

DENNIS A. B. FUNA, G.R. No. 192791

Petitioner,
Present:

CORONA, C.J.,
- versus - CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
THE CHAIRMAN, COMMISSION PERALTA,
ON AUDIT, REYNALDO A. BERSAMIN,
VILLAR, DEL CASTILLO,
Respondent. ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:
April 24, 2012

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

DECISION

VELASCO, JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B.
Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as
Chairman of the Commission on Audit and accordingly prays that a judgment issue
declaring the unconstitutionality of the appointment.
 The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President

Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as Chairman of the
Commission on Audit (COA) for a term of seven (7) years, pursuant to the 1987
Constitution.[1] Caragues term of office started on February 2, 2001 to end on
February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed

Reynaldo A. Villar (Villar) as the third member of the COA for a term of seven (7)
years starting February 2, 2004 until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the

fourth year of Villar as COA Commissioner, Villar was designated as Acting
Chairman of COA from February 4, 2008 to April 14, 2008. Subsequently, on April
18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his
appointment. He was to serve as Chairman of COA, as expressly indicated in the
appointment papers, until the expiration of the original term of his office as COA
Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the chairmanship, insists that his
appointment as COA Chairman accorded him a fresh term of seven (7) years which
is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is
up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was
appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed

as COA Commissioner to serve the unexpired term of Villar as Commissioner or up
to February 2, 2011.

Before the Court could resolve this petition, Villar, via a letter dated February
22, 2011 addressed to President Benigno S. Aquino III, signified his intention to step
down from office upon the appointment of his replacement. True to his word, Villar
vacated his position when President Benigno Simeon Aquino III named Ma. Gracia
Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this
petition and the main issue tendered therein moot and academic.

A case is considered moot and academic when its purpose has become
[2]
stale, or when it ceases to present a justiciable controversy owing to the onset of
supervening events,[3] so that a resolution of the case or a declaration on the issue
would be of no practical value or use.[4] In such instance, there is no actual
substantial relief which a petitioner would be entitled to, and which will anyway be
negated by the dismissal of the basic petition.[5] As a general rule, it is not within
Our charge and function to act upon and decide a moot case. However, in David v.
Macapagal-Arroyo,[6] We acknowledged and accepted certain exceptions to the
issue of mootness, thus:

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, second, the exceptional character of the situation and the
paramount public interest is involved, third, when 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.

Although deemed moot due to the intervening appointment of Chairman Tan

and the resignation of Villar, We consider the instant case as falling within the
requirements for review of a moot and academic case, since it asserts at least four
exceptions to the mootness rule discussed in David, namely: there is a grave
violation of the Constitution; the case involves a situation of exceptional character
and is of paramount public interest; the constitutional issue raised requires the
formulation of controlling principles to guide the bench, the bar and the public; and
the case is capable of repetition yet evading review.[7] The situation presently
obtaining is definitely of such exceptional nature as to necessarily call for the
promulgation of principles that will henceforth guide the bench, the bar and the
public should like circumstance arise. Confusion in similar future situations would
be smoothed out if the contentious issues advanced in the instant case are resolved
straightaway and settled definitely. There are times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be addressed. To borrow
from Javier v. Pacificador,[8] Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the guidance of and as a
restraint in the future.

Both procedural and substantive issues are raised in this proceeding. The
procedural aspect comes down to the question of whether or not the following
requisites for the exercise of judicial review of an executive act obtain in this
petition, viz: (1) there must be an actual case or justiciable controversy before the
court; (2) the question before it 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.[9]

To Villar, all the requisites have not been met, it being alleged in particular
that petitioner, suing as a taxpayer and citizen, lacks the necessary standing to
challenge his appointment.[10] On the other hand, the Office of the Solicitor General
(OSG), while recognizing the validity of Villars appointment for the period ending
February 11, 2011, has expressed the view that petitioner should have had filed a
petition for declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.
Villars posture on the absence of some of the mandatory requisites for the
exercise by the Court of its power of judicial review must fail. As a general rule, a
petitioner must have the necessary personality or standing (locus standi) before a
court will recognize the issues presented. In Integrated Bar of the Philippines v.
Zamora, We defined locus standi as:

x x x a personal and substantial interest in the case such that the

party has sustained or will sustain a direct injury as a result of the
governmental act that is being challenged. 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. The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to assure
the concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.[11]

To have legal standing, therefore, a suitor must show that he has sustained or will
sustain a direct injury as a result of a government action, or have a material interest
in the issue affected by the challenged official act. [12] However, the Court has time
and again acted liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest affected, by a
Government act, standing to sue provided a constitutional issue of critical
significance is at stake.[13] The rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of cases involving a subject
of transcendental import, has 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 personally injured by the operation of
a law or any other government act.[14] In David, the Court laid out the bare minimum
norm before the so-called non-traditional suitors may be extended standing to sue,
thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public

funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity
of the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has

far-reaching implications, and there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases. We, thus, assume a liberal
stance and allow petitioner to institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as

to the propriety of the availment of certiorari as a medium to inquire on whether the
assailed appointment of respondent Villar as COA Chairman infringed the
constitution or was infected with grave abuse of discretion. For under the expanded
concept of judicial review under the 1987 Constitution, the corrective hand of
certiorari may be invoked 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. [15] Grave abuse of
discretion denotes:
 such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, in other words, where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility,
and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act in
contemplation of law.[16]

We find the remedy of certiorari applicable to the instant case in view of the
allegation that then President Macapagal-Arroyo exercised her appointing power in
a manner constituting grave abuse of discretion.

This brings Us to the pivotal substantive issue of whether or not Villars

appointment as COA Chairman, while sitting in that body and after having served
for four (4) years of his seven (7) year term as COA commissioner, is valid in light
of the term limitations imposed under, and the circumscribing concepts tucked in,
Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall

be appointed by the President with the consent of the Commission on
Appointments for a term of seven years withoutreappointment. Of
those first appointed, the Chairman shall hold office for seven years, one
commissioner for five years, and the other commissioner for three years,
without reappointment. Appointment to any vacancy shall be only for
the unexpired portion of the term of the predecessor. In no case shall
any member be appointed or designated in a temporary or acting capacity.
(Emphasis added.)[17]

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined
restricting features in the matter of the composition of COA and the appointment of
its members (commissioners and chairman) designed to safeguard the independence
and impartiality of the commission as a body and that of its individual
members.[18] These are, first, the rotational plan or the staggering term in the
commission membership, such that the appointment of commission members
subsequent to the original set appointed after the effectivity of the 1987 Constitution
shall occur every two years; second, the maximum but a fixed term-limit of seven
(7) years for all commission members whose appointments came about by reason of
the expiration of term save the aforementioned first set of appointees and those made
to fill up vacancies resulting from certain causes; third, the prohibition against
reappointment of commission members who served the full term of seven years or
of members first appointed under the Constitution who served their respective terms
of office; fourth, the limitation of the term of a member to the unexpired portion of
the term of the predecessor; and fifth, the proscription against temporary
appointment or designation.

To elucidate on the mechanics of and the adverted limitations on the matter of

COA-member appointments with fixed but staggered terms of office, the Court lays
down the following postulates deducible from pertinent constitutional provisions, as
construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or

the seven, five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the
Constitution, had already expired. Hence, their respective terms of office find
relevancy for the most part only in understanding the operation of the rotational plan.
In Gaminde v. Commission on Audit,[19] the Court described how the smooth
functioning of the rotational system contemplated in said and like provisions
covering the two other independent commissions is achieved thru the staggering of
terms:

x x x [T]he terms of the first Chairmen and Commissioners of the

Constitutional Commissions under the 1987 Constitution must start on a
common date [February 02, 1987, when the 1987 Constitution was
ratified] irrespective of the variations in the dates of appointments and
qualifications of the appointees in order that the expiration of the first
terms of seven, five and three years should lead to the regular recurrence
of the two-year interval between the expiration of the terms.

x x x In case of a belated appointment, the interval between the

start of the terms and the actual appointment shall be counted against
the appointee.[20] (Italization in the original; emphasis added.)
 Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, both
indispensable to [the] workability of the rotational plan. These conditions may be
described as follows: (a) that the terms of the first batch of commissioners should
start on a common date; and (b) that any vacancy due to death, resignation or
disability before the expiration of the term should be filled only for the
unexpired balance of the term. Otherwise, Imperial continued, the regularity of
the intervals between appointments would be destroyed. There appears to be near
unanimity as to the purpose/s of the rotational system, as originally conceived, i.e.,
to place in the commission a new appointee at a fixed interval (every two years
presently), thus preventing a four-year administration appointing more than one
permanent and regular commissioner,[22] or to borrow from Commissioner Monsod
of the 1986 CONCOM, to prevent one person (the President of the Philippines) from
dominating the commissions.[23] It has been declared too that the rotational plan
ensures continuity in, and, as indicated earlier, secure the independence of, the
commissions as a body.[24]
2. An appointment to any vacancy in COA, which arose from an expiration of
a term, after the first chairman and commissioners appointed under the 1987
Constitution have bowed out, shall, by express constitutional fiat, be for a term
of seven (7) years, save when the appointment is to fill up a vacancy for the
corresponding unserved term of an outgoing member. In that case, the appointment
shall only be for the unexpired portion of the departing commissioners term of
office. There can only be an unexpired portion when, as a direct result of his demise,
disability, resignation or impeachment, as the case may be, a sitting member is
unable to complete his term of office.[25] To repeat, should the vacancy arise out of
the expiration of the term of the incumbent, then there is technically no unexpired
portion to speak of. The vacancy is for a new and complete seven-year term
and, ergo, the appointment thereto shall in all instances be for a maximum seven (7)
years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits
the reappointment of a member of COA after his appointment for seven (7) years.
Writing for the Court in Nacionalista Party v. De Vera,[26] a case involving the
promotion of then COMELEC Commissioner De Vera to the position of chairman,
then Chief Justice Manuel Moran called attention to the fact that the prohibition
against reappointment comes as a continuation of the requirement that the
commissionersreferring to members of the COMELEC under the 1935
Constitutionshall hold office for a term of nine (9) years. This sentence formulation
imports, notes Chief Justice Moran, that reappointment is not an absolute
prohibition.
4. The adverted system of regular rotation or the staggering of appointments
and terms in the membership for all three constitutional commissions, namely the
COA, Commission on Elections (COMELEC) and Civil Service Commission (CSC)
found in the 1987 Constitution was patterned after the amended 1935 Constitution
for the appointment of the members of COMELEC[27] with this difference: the 1935
version entailed a regular interval of vacancy every three (3) years, instead of the
present two (2) years and there was no express provision on appointment to any
vacancy being limited to the unexpired portion of the his predecessors term. The
model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections

composed of a Chairman and two other members to be appointed by the
President with the consent of the Commission on Appointments, who shall
hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine
years, another for six years and the third for three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987
Constitution proscribes reappointment of any kind within the commission, the point
being that a second appointment, be it for the same position (commissioner to
another position of commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is
drawn in this regard to the Courts disposition in Matibag v. Benipayo.[28]

Villars promotional appointment, so it is argued, is void from the start,

constituting as it did a reappointment enjoined by the Constitution, since it actually
needed another appointment to a different office and requiring another confirmation
by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be

given to Sec. 1(2), Article IX(D) of the Constitution on the ban against
reappointment in relation to the appointment issued to respondent Villar to the
position of COA Chairman.
 Without question, the parties have presented two (2) contrasting and
conflicting positions. Petitioner contends that Villars appointment is proscribed by
the constitutional ban on reappointment under the aforecited constitutional
provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same
provision.

The Court finds petitioners position bereft of merit. The flaw lies in regarding
the word reappointment as, in context, embracing any and all species of
appointment.

The rule is that if a statute or constitutional provision is clear, plain and free
from ambiguity, it must be given its literal meaning and applied without attempted
interpretation.[29] This is known as the plain meaning rule enunciated by the
maxim verba legis non est recedendum, or from the words of a statute there should
be no departure.[30]
The primary source whence to ascertain constitutional intent or purpose is the
language of the provision itself.[31] If possible, the words in the Constitution must be
given their ordinary meaning, save where technical terms are employed. J.M.
Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule in
this wise:

We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is
to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are employed
in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyers document, it being essential for the
rule of law to obtain that it should ever be present in the peoples
consciousness, its language as much as possible 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. Thus there are cases where the need for
construction is reduced to a minimum.[32] (Emphasis supplied.)
 Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall

be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one
commissioner for five years, and the other commissioner for three years,
without reappointment.Appointment to any vacancy shall be only for
the unexpired portion of the term of the predecessor. x x x (Emphasis
added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed by
the President for a term of seven years, and if he has served the full term, then he
can no longer be reappointed or extended another appointment. In the same vein, a
Commissioner who was appointed for a term of seven years who likewise served the
full term is barred from being reappointed. In short, once the Chairman or
Commissioner shall have served the full term of seven years, then he can no longer
be reappointed to either the position of Chairman or Commissioner. The obvious
intent of the framers is to prevent the president from dominating the Commission by
allowing him to appoint an additional or two more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional
Convention barred reappointment to be extended to commissioner-members first
appointed under the 1987 Constitution to prevent the President from controlling the
commission. Thus, the first Chairman appointed under the 1987 Constitution who
served the full term of seven years can no longer be extended a reappointment.
Neither can the Commissioners first appointed for the terms of five years and three
years be eligible for reappointment.This is the plain meaning attached to the second
sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional
appointment from commissioner to chairman as long as the commissioner has not
served the full term of seven years, further qualified by the third sentence of Sec.
1(2), Article IX (D) that the appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In addition, such promotional
appointment to the position of Chairman must conform to the rotational plan or the
staggering of terms in the commission membership such that the aggregate of the
service of the Commissioner in said position and the term to which he will be
appointed to the position of Chairman must not exceed seven years so as not to
disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a
promotional appointment from Commissioner to Chairman, provided it is made
under the aforestated circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D),
as couched, allows a promotional appointment from Commissioner to
Chairman. Even if We concede the existence of an ambiguity, the outcome will
remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt as to the
import and react of a constitutional provision, resort should be made to extraneous
aids of construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or the purpose of
the provision being construed.

The understanding of the Convention as to what was meant by the terms of the
constitutional provision which was the subject of the deliberation goes a long way
toward explaining the understanding of the people when they ratified it. The Court
applied this principle in Civil Liberties Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention

underlying the provision under consideration. Thus, it has been held that
the Court in construing a Constitution should bear in mind the object
sought to be accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be examined in the
light of the history of the times, and the condition and circumstances under
which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in
order to construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.[34] (Emphasis added.)

And again in Nitafan v. Commissioner on Internal Revenue:

 x x x The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent of
the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain
and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.[35](Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers of
the Constitution in interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where
a commissioner is upgraded to the position of chairman, the 1987 Constitution in
fact unequivocally allows promotional appointment, but subject to defined
parameters. The ensuing exchanges during the deliberations of the 1986
Constitutional Commission (CONCOM) on a draft proposal of what would
eventually be Sec. 1(2), Art. IX(D) of the present Constitution amply support the
thesis that a promotional appointment is allowed provided no one may be in the COA
for an aggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an

amendment x x x. Between x x x the sentence which begins with In no
case, insert THE APPOINTEE SHALL IN NO CASE SERVE AN
AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was
thinking that this may approximate the situation wherein a commissioner
is first appointed as chairman. I am willing to withdraw that amendment
if there is a representation on the part of the Committee that there is an
implicit intention to prohibit a term that in the aggregate will exceed
more than seven years. If that is the intention, I am willing to
withdraw my amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article,

she will notice that there is no reappointment of any kind and, therefore,
as a whole there is no way somebody can serve for more than seven
years. The purpose of the last sentence is to make sure that this does not
happen by including in the appointment both temporary and acting
capacities.
 MS. AQUINO. Yes. Reappointment is fine; that is accounted
for. But I was thinking of a situation wherein a commissioner is
upgraded to a position of chairman. But if this provision is intended to
cover that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that

situation. It states: Appointment to any vacancy shall be only for the
unexpired portion of the predecessor. In other words, if there is
upgrading of position from commissioner to chairman, the appointee
can serve only the unexpired portion of the term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it

might shorten the term because he serves only the unexpired portion
of the term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only
have to serve the unexpired portion of the term of the
predecessor. (Emphasis added.)[36]

The phrase upgrading of position found in the underscored portion

unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its
caveat against reappointment, does not per se preclude, in any and all cases, the
promotional appointment or upgrade of a commissioner to chairman, subject to this
proviso: the appointees tenure in office does not exceed 7 years in all. Indeed, such
appointment does not contextually come within the restricting phrase without
reappointment twice written in that section. Delegate Foz even cautioned, as a
matter of fact, that a sitting commissioner accepting a promotional appointment to
fill up an unexpired portion pertaining to the higher office does so at the risk of
shortening his original term. To illustrate the Fozs concern: assume that Carague left
COA for reasons other than the expiration of his threshold 7-year term and Villar
accepted an appointment to fill up the vacancy. In this situation, the latter can only
stay at the COA and served the unexpired portion of Caragues unexpired term as
departing COA Chairman, even if, in the process, his (Villars) own 7-year term as
COA commissioner has not yet come to an end. In this illustration, the inviolable
regularity of the intervals between appointments in the COA is preserved.
 Moreover, jurisprudence tells us that the word reappointment means a second
appointment to one and the same office.[37] As Justice Arsenio Dizon (Justice Dizon)
aptly observed in his dissent in Visarra v. Miraflor,[38] the constitutional prohibition
against the reappointment of a commissioner refers to his second appointment to the
same office after holding it for nine years.[39] As Justice Dizon observed, [T]he
occupant of an office obviously needs no such second appointment unless, for some
valid cause, such as the expiration of his term or resignation, he had ceased to be the
legal occupant thereof. [40] The inevitable implication of Justice Dizons cogent
observation is that a promotion from commissioner to chairman, albeit entailing a
second appointment, involves a different office and, hence, not, in the strict legal
viewpoint, a reappointment. Stated a bit differently, reappointment refers to a
movement to one and the same office. Necessarily, a movement to a different
position within the commission (from Commissioner to Chairman) would constitute
an appointment, or a second appointment, to be precise, but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice
Angelo Bautista, although he expressly alluded to a promotional appointment as not
being a prohibited appointment under Art. X of the 1935 Constitution.

Petitioners invocation of Matibag as additional argument to contest the

constitutionality of Villars elevation to the COA chairmanship is inapposite.
In Matibag, then President Macapagal-Arroyo appointed, ad interim, Alfredo
Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason
as Commissioners, each for a term of office of seven (7) years. All three immediately
took their oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two ad
interim appointments. Via a petition for prohibition, some disgruntled COMELEC
officials assail as infirm the appointments of Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment

would arise, or to be specific, where the proviso [t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without
reappointment shall apply. Justice Antonio T. Carpio declares in his dissent that
Villars appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the
situations referred to in Matibag, that case is of doubtful applicability to the instant
petition. Not only is it cast against a different milieu, but the lis mota of the case, as
expressly declared in the main opinion, is the very constitutional issue raised by
petitioner.[41] And what is/are this/these issue/s? Only two defined issues
in Matibag are relevant, viz: (1) the nature of an ad interim appointment and
subsumed thereto the effect of a by-passed ad interim appointment; and (2) the
constitutionality of renewals of ad interim appointments. The opinion defined these
issues in the following wise: Petitioner [Matibag] filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and
Tuason as Chairman and Commissioners of the COMELEC, respectively. Petitioner
claims that the ad interim appointments of Benipayo, et al. violate the constitutional
provisions on the independence of COMELEC, as well as on the prohibitions on
temporary appointments and reappointments of its Chairman and members. As may
distinctly be noted, an upgrade or promotion was not in issue in Matibag.

We shall briefly address the four adverted situations outlined

in Matibag, in which, as there urged, the uniform proviso on no reappointmentafter
a member of any of the three constitutional commissions is appointed for a term of
seven (7) yearsshall apply. Matibag made the following formulation:

The first situation is where an ad interim appointee after

confirmation by the Commission on Appointments serves his full 7-year
term. Such person cannot be reappointed whether as a member or as
chairman because he will then be actually serving more than seven (7)
years.

The second situation is where the appointee, after confirmation,

serves part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed whether as a member or
as chair to a vacancy arising from retirement because a reappointment will
result in the appointee serving more than seven years.

The third situation is where the appointee is confirmed to serve the

unexpired portion of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed whether
as a member or as chair to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven
(7) years.
 The fourth situation is where the appointee has previously
served a term of less than seven (7) years, and a vacancy arises from
death or resignation. Even if it will not result in his serving more than
seven years, a reappointment of such person to serve an unexpired
term is also prohibited because his situation will be similar to those
appointed under the second sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees (the 5 and 3 year
termers) whose term of office are less than 7 years but are barred
from being reappointed under any situation].[42] (Words in brackets and
emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the
force of adjudication, for the corresponding formulation of the four situations was
not in any way necessary to resolve any of the determinative issues specifically
defined in Matibag. An opinion entirely unnecessary for the decision of the case or
one expressed upon a point not necessarily involved in the determination of the case
is an obiter.[43]

There can be no serious objection to the scenarios depicted in

the first, second and third situations, both hewing with the proposition that no one
can stay in any of the three independent commissions for an aggregate period of
more than seven (7) years. The fourth situation, however, does not commend itself
for concurrence inasmuch as it is basically predicated on the postulate that
reappointment, as earlier herein defined, of any kind is prohibited under any and all
circumstances. To reiterate, the word reappointment means a second appointment to
one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and
similar provisions do not peremptorily prohibit the promotional appointment of a
commissioner to chairman, provided the new appointees tenure in both capacities
does not exceed seven (7) years in all. The statements in Matibag enunciating the
ban on reappointment in the aforecited fourth situation, perforce, must be
abandoned, for, indeed, a promotional appointment from the position of
Commissioner to that of Chairman is constitutionally permissible and not barred by
Sec. 1(2), Art. IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is

to ensure and preserve the independence of COA and its members, [44] citing what
the dissenting Justice J.B.L Reyes wrote in Visarra, that once appointed and
confirmed, the commissioners should be free to act as their conscience demands,
without fear of retaliation or hope or reward. Pursued to its logical conclusion,
petitioners thesis is that a COA member may no longer act with independence if he
or she can be rewarded with a promotion or appointment, for then he or she will do
the bidding of the appointing authority in the hope of being promoted or
reappointed.

The unstated reason behind Justice J.B.L. Reyes counsel is that independence
is really a matter of choice. Without taking anything away from the gem imparted
by the eminent jurist, what Chief Justice Moran said on the subject of independence
is just as logically sound and perhaps even more compelling, as follows:

A Commissioner, hopeful of reappointment may strive to do good.

Whereas, without that hope or other hope of material reward, his
enthusiasm may decline as the end of his term approaches and he may
even lean to abuses if there is no higher restrain in his moral character.
Moral character is no doubt the most effective safeguard of independence.
With moral integrity, a commissioner will be independent with or without
the possibility of reappointment.[45]

The Court is likewise unable to sustain Villars proposition that his

promotional appointment as COA Chairman gave him a completely fresh 7-year
termfrom February 2008 to February 2015given his four (4)-year tenure as COA
commissioner devalues all the past pronouncements made by this Court, starting
in De Vera, then Imperial, Visarra,and finally Matibag. While there had been
divergence of opinion as to the import of the word reappointment, there has been
unanimity on the dictum that in no case can one be a COA member, either as
chairman or commissioner, or a mix of both positions, for an aggregate term of more
than 7 years. A contrary view would allow a circumvention of the aggregate 7-year
service limitation and would be constitutionally offensive as it would wreak havoc
to the spirit of the rotational system of succession. Imperial, passing upon the
rotational system as it applied to the then organizational set-up of the COMELEC,
stated:

The provision that of the first three commissioners appointed one shall hold
office for 9 years, another for 6 years and the third for 3 years, when taken together
with the prescribed term of office for 9 years without reappointment, evinces a
deliberate plan to have a regular rotation or cycle in the membership of the
 commission, by having subsequent members appointable only once every three
years.[46]

To be sure, Villars appointment as COA Chairman partakes of a promotional

appointment which, under appropriate setting, would be outside the purview of the
constitutional reappointment ban in Sec 1(2), Art. IX(D) of the Constitution.
Nonetheless, such appointment, even for the term appearing in the underlying
appointment paper, ought still to be struck down as unconstitutional for the reason
as shall be explained.

Consider:

In a mandatory tone, the aforecited constitutional provision decrees that the

appointment of a COA member shall be for a fixed 7-year term if the vacancy results
from the expiration of the term of the predecessor. We reproduce in its pertinent part
the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall

be appointed x x x for a term of seven years without reappointment. x x
x Appointment to any vacancy shall be only forthe unexpired portion
of the term of the predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for

a stated fixed term of less than seven (7) years is void for violating a clear, but
mandatory constitutional prescription. There can be no denying that the vacancy in
the position of COA chairman when Carague stepped down in February 2, 2008
resulted from the expiration of his 7-year term. Hence, the appointment to the
vacancy thus created ought to have been one for seven (7) years in line with
the verbal legis approach[47] of interpreting the Constitution. It is to be understood,
however, following Gaminde, that in case of a belated appointment, the interval
between the start of the term and the actual appointment shall be counted against the
7-year term of the appointee. Posing, however, as an insurmountable barrier to a full
7-year appointment for Villar is the rule against one serving the commission for an
aggregate term of more than seven (7) years.
 Where the Constitution or, for that matter, a statute, has fixed the term of
office of a public official, the appointing authority is without authority to specify in
the appointment a term shorter or longer than what the law provides. If the vacancy
calls for a full seven-year appointment, the President is without discretion to extend
a promotional appointment for more or for less than seven (7) years. There is no in
between. He or she cannot split terms. It is not within the power of the appointing
authority to override the positive provision of the Constitution which dictates that
the term of office of members of constitutional bodies shall be seven (7) years.[48] A
contrary reasoning would make the term of office to depend upon the pleasure or
caprice of the [appointing authority] and not upon the will [of the framers of the
Constitution] of the legislature as expressed in plain and undoubted language in the
law.[49]

In net effect, then President Macapagal-Arroyo could not have had, under any
circumstance, validly appointed Villar as COA Chairman, for a full 7-year
appointment, as the Constitution decrees, was not legally feasible in light of the 7-
year aggregate rule. Villar had already served 4 years of his 7-year term as COA
Commissioner. A shorter term, however, to comply with said rule would also be
invalid as the corresponding appointment would effectively breach the clear purpose
of the Constitution of giving to every appointee so appointed subsequent to the first
set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA
commissioner like respondent Villar who serves for a period less than seven (7) years
cannot be appointed as chairman when such position became vacant as a result of
the expiration of the 7-year term of the predecessor (Carague).Such appointment to
a full term is not valid and constitutional, as the appointee will be allowed to serve
more than seven (7) years under the constitutional ban.

On the other hand, a commissioner who resigned before serving his 7- year
term can be extended an appointment to the position of chairman for the unexpired
period of the term of the latter, provided the aggregate of the period he served as
commissioner and the period he will serve as chairman will not exceed seven (7)
years. This situation will only obtain when the chairman leaves the office by reason
of death, disability, resignation or impeachment. Let us consider, in the concrete, the
situation of then Chairman Carague and his successor, Villar. Carague was
appointed COA Chairman effective February 2, 2001 for a term of seven (7) years,
or up to February 2, 2008. Villar was appointed as Commissioner on February 2,
2004 with a 7-year term to end on February 2, 2011. If Carague for some reason
vacated the chairmanship in 2007, then Villar can resign as commissioner in the
same year and later be appointed as chairman to serve only up to February 2, 2008,
the end of the unexpired portion of Caragues term. In this hypothetical scenario,
Villars appointment to the position of chairman is valid and constitutional as the
aggregate periods of his two (2) appointments will only be five (5) years which
neither distorts the rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however, forfeit two
(2) years of his original seven (7)-year term as Commissioner, since, by accepting
an upgraded appointment to Caragues position, he agreed to serve the unexpired
portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs line,
if there is an upgrading of position from commissioner to chairman, the appointee
takes the risk of cutting short his original term, knowing pretty well before hand that
he will serve only the unexpired portion of the term of his predecessor, the outgoing
COA chairman.

In the extreme hypothetical situation that Villar vacates the position of

chairman for causes other than the expiration of the original term of Carague, the
President can only appoint the successor of Villar for the unexpired portion of the
Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the President can appoint a new
chairman for a term of seven (7) full years.

In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes

strong exception to the view that the promotional appointment of a sitting
commissioner is plausible only when he is appointed to the position of chairman for
the unexpired portion of the term of said official who leaves the office by reason of
any the following reasons: death, disability, resignation or impeachment, not when
the vacancy arises out as a result of the expiration of the 7-year term of the past
chairman. There is nothing in the Constitution, so Justice Mendoza counters, that
restricts the promotion of an incumbent commissioner to the chairmanship only in
instances where the tenure of his predecessor was cut short by any of the four events
referred to. As earlier explained, the majority view springs from the interplay of the
following premises: The explicit command of the Constitution is that the Chairman
and the Commissioners shall be appointed by the President x x x for a term of seven
years [and] appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. To repeat, the President has two and only two options
on term appointments. Either he extends an appointment for a full 7-year term when
the vacancy results from the expiration of term, or for a shorter period corresponding
to the unexpired term of the predecessor when the vacancy occurs by reason of death,
physical disability, resignation or impeachment. If the vacancy calls for a full seven-
year appointment, the Chief Executive is barred from extending a promotional
appointment for less than seven years. Else, the President can trifle with terms of
office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a

commissioner had been promoted chairman after the expiration of the term of his
predecessor, referring specifically to the appointment of then COMELEC
Commissioner Gaudencio Garcia to succeed Jose P. Carag after the expiration of the
latters term in 1959 as COMELEC chairman. Such appointment to the position of
chairman is not constitutionally permissible under the 1987 Constitution because of
the policy and intent of its framers that a COA member who has served his full term
of seven (7) years or even for a shorter period can no longer be extended another
appointment to the position of chairman for a full term of seven (7) years. As
revealed in the deliberations of the Constitutional Commission that crafted the 1987
Constitution, a member of COA who also served as a commissioner for less than
seven (7) years in said position cannot be appointed to the position of chairman for
a full term of seven (7) years since the aggregate will exceed seven (7) years. Thus,
the adverted Garcia appointment in 1959 made under the 1935 Constitution cannot
be used as a precedent to an appointment of such nature under the 1987
Constitution. The dissent further notes that the upgrading remained uncontested. In
this regard, suffice it to state that the promotion in question was either legal or it was
not. If it were not, no amount of repetitive practices would clear it of invalidating
taint.

Lastly, Villars appointment as chairman ending February 2, 2011 which

Justice Mendoza considers as valid is likewise unconstitutional, as it will destroy the
rationale and policy behind the rotational system or the staggering of appointments
and terms in COA as prescribed in the Constitution. It disturbs in a way the staggered
rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987
Constitution. Consider: If Villars term as COA chairman up to February 2, 2011 is
viewed as valid and constitutional as espoused by my esteemed colleague, then two
vacancies have simultaneously occurred and two (2) COA members going out of
office at once, opening positions for two (2) appointables on that date as
Commissioner San Buenaventuras term also expired on that day. This is precisely
one of the mischiefs the staggering of terms and the regular intervals appointments
seek to address. Note that San Buenaventura was specifically appointed to succeed
Villar as commissioner, meaning she merely occupied the position vacated by her
predecessor whose term as such commissioner expired on February 2, 2011. The
result is what the framers of the Constitution doubtless sought to avoid, a sitting
President with a 6-year term of office, like President Benigno C. Aquino III,
appointing all or at least two (2) members of the three-man Commission during his
term. He appointed Ma. Gracia Pulido-Tan as Chairman for the term ending
February 2, 2015 upon the relinquishment of the post by respondent Villar, and Heidi
Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018
to replace San Buenaventura. If Justice Mendozas version is adopted, then situations
like the one which obtains in the Commission will definitely be replicated in gross
breach of the Constitution and in clear contravention of the intent of its
framers. Presidents in the future can easily control the Commission depriving it of
its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the
Constitution, viz:
1. The appointment of members of any of the three constitutional
commissions, after the expiration of the uneven terms of office of the first set of
commissioners, shall always be for a fixed term of seven (7) years; an appointment
for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7)
years in case of the expiration of the term as this will result in the distortion of the
rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death,

resignation, disability or impeachment) shall only be for the unexpired portion of the
term of the predecessor, but such appointments cannot be less than the unexpired
portion as this will likewise disrupt the staggering of terms laid down under Sec.
1(2), Art. IX(D).
 3. Members of the Commission, e.g. COA, COMELEC or CSC, who
were appointed for a full term of seven years and who served the entire period, are
barred from reappointment to any position in the Commission. Corollarily, the first
appointees in the Commission under the Constitution are also covered by the
prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less

than seven years is eligible for an appointment to the position of Chairman for the
unexpired portion of the term of the departing chairman. Such appointment is not
covered by the ban on reappointment, provided that the aggregate period of the
length of service as commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided further that the vacancy in
the position of Chairman resulted from death, resignation, disability or removal by
impeachment. The Court clarifies that reappointment found in Sec. 1(2), Art. IX(D)
means a movement to one and the same office (Commissioner to Commissioner or
Chairman to Chairman). On the other hand, an appointment involving a movement
to a different position or office (Commissioner to Chairman) would constitute a new
appointment and, hence, not, in the strict legal sense, a reappointment barred under
the Constitution.

5. Any member of the Commission cannot be appointed or designated in

a temporary or acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of

then Commissioner Reynaldo A. Villar to the position of Chairman of the
Commission on Audit to replace Guillermo N. Carague, whose term of office as such
chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of
Sec. 1(2), Art. IX(D) of the Constitution.

SO ORDERED.

PRESBITERO J. VELASCO JR.

Associate Justice
 Funa vs Villar
Case Digest GR 192791 April 24 2012
→ Full Text ←
Facts:
On February 15, 2001, Pres Arroyo appointed Carague as Chairman of the COA for a term of 7
years. Carague’s term of office started on February 2, 2001 to end on February 2, 2008. On
February 7, 2004, Villar was appointed as the third member of the COA for a term of 7 years starting
February 2, 2004 until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14,
2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the
COA. Shortly thereafter, the Commission on Appointments confirmed his appointment. He was to
serve as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of
the original term of his office as COA Commissioner or on February 2, 2011.

Issue 1: W/N a promotional appointment from the position of Commissioner to Chairman is

constitutionally permissible and does NOT constitute reappointment as barred by the Article IX (D),
Sec 1 (2) of the Constitution
Yes. A commissioner who resigns after serving in the Commission for less than seven years is
eligible for an appointment to the position of Chairman for the unexpired portion of the term of the
departing chairman. Such appointment is not covered by the ban on reappointment, provided that
the aggregate period of the length of service as commissioner and the unexpired period of the term
of the predecessor will not exceed 7 years and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or removal by impeachment.

Reappointment found in Sec. 1(2), Art. IX(D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.

Issue 2: W/N the appointment of Villar to the position of COA Chairman which is made vacant by the
expiration of term of the predecessor is valid
No. The Constitution clearly provides that if the vacancy results from the expiration of the term of the
predecessor, the appointment of a COA member shall be for a fixed 7-year term.
Here, the vacancy in the position of COA chairman left by Carague in February 2, 2008 resulted
from the expiration of his 7-year term. Under that circumstance, there can be no unexpired portion of
the term of the predecessor to speak of. Hence, in light of the 7-year aggregate rule, Villar’s
appointment to a full term is not valid as he will be allowed to serve more than seven 7 years under
the constitutional ban.

Villar had already served 4 years of his 7-year term as COA Commissioner. A shorter term, however,
to comply with the 7-year aggregate rule would also be invalid as the corresponding appointment
would effectively breach the clear purpose of the Constitution of giving to every appointee so
appointed subsequent to the first set of commissioners, a fixed term of office of 7 years.

Notes:
A. One of the doctrinal guidelines outlined in Matibag vs Benipayo has been effectively abandoned by the
Court’s pronouncement in this case.
G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

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

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D.
VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the following: (1)
1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December
2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for
having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in
the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968.
Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano
Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and
registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In
her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando
Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the
Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition
and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption,2 the petitioner's adoptive
mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an
affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed
her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8but she opted to continue her studies abroad and left for the United States of America
(U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen
of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous
of being with her husband who was then based in the U.S., the couple flew back to the U.S. two
days after the wedding ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in
the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her
father's candidacy for President in the May 2004 elections. It was during this time that she gave birth
to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines
upon learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family.
In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move
and reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester;20 coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S.23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as
to arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan
City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the
unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine
private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some
of the family's remaining household belongings.29 She travelled back to the Philippines on 11 March
2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's
change and abandonment of their address in the U.S.31 The family home was eventually sold on 27
April 2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home34 and to this day, is where the couple and their
children have been residing.35 A Transfer Certificate of Title covering said property was issued in the
couple's name by the Register of Deeds of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under
the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on
10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This
passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861
by the DFA.42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the
Movie and Television Review and Classification Board (MTRCB).43 Before assuming her post,
petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and
Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010,44 in
satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21
October 2010 petitioner submitted the said affidavit to the BI46 and took her oath of office as
Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport.48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States."49 On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the petitioner stated that she had
resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991
and from May 2005 to present.51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality
of the United States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for
Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question
"Period of residence in the Philippines before May 13, 2013."53 Petitioner obtained the highest
number of votes and was proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation
of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October
2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to
the COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed material misrepresentation
when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of
the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May
2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a foundling.62 Elamparo claimed that international law
does not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No.
9225 for she is not a natural-born Filipino citizen to begin with.64 Even assuming arguendo that
petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a
naturalized American citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in
the country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise
insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under
R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her
residence could only be counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the
Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
 (2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-
born Filipino citizen nor was there any allegation that there was a willful or deliberate intent to
misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship
and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were

considered citizens;

b. foundlings are presumed under international law to have been born of citizens of
the place where they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A.
No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of
her COC for President in the May 9, 2016 Elections and that the same is in full force
and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born
status;

f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born

citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an
honest mistake, not binding and should give way to evidence on her true date of
reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino
people to decide a purely political question, that is, should she serve as the country's
next leader.68

After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines
in the 9 May 2016 National and Local Elections, contained material representations which are false.
The fallo of the aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course
to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy
for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed
by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which
were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71 docketed
as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship
to qualify her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since
blood relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact that foundlings were not
expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers'
intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim
that foundlings have a nationality.76 According to Tatad, international conventions and treaties are not
self-executory and that local legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard state practice that
automatically confers natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens
and petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No.
15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the
status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their
original status as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency requirement for
President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA
No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her COC when she stated
that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine
citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country
before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she
was then living here as an American citizen and as such, she was governed by the Philippine
immigration laws.88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition
did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of
the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the recognized grounds for the disqualification
of a candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen
of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the
decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that
she is a natural-born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and schooling in
the country, purchase of a condominium unit in San Juan City and the construction of their family
home in Corinthian Hills.99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of
domicile are complied with.100 She reasoned out that there was no requirement that renunciation of
foreign citizenship is a prerequisite for the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was
a mistake made in good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that
she is not qualified for the elective position of President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,

to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's
motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status
quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its representatives from implementing
the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter,
oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and
SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1

December 2015 Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11

December 2015 Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due
course or cancelled "on the exclusive ground" that she made in the certificate a false material
representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this
case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot
itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C,
Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving

elective municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions

which, in addition to other requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.

Financial contributions from foreign governments and their agencies to political

parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
 prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the
Vice-President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on

Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the
following:

Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the
Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in §
12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed
in the Constitution or the statutes for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of
[the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why it is provided that if the grounds
for disqualification are established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even
after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is
the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166,
§ 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal
and the other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice President, as the case
may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to

the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25.
This, the 15 February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final
decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate
of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof,
shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to
the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the
COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand
be established in a prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a judgment of a competent
court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can be found. The only
exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity
and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals
with, as in this case, alleged false representations regarding the candidate's citizenship and
residence, forced the COMELEC to rule essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution,109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all.
This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to present
evidence to prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity
and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents
and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift
the burden to her because such status did not exclude the possibility that her parents were Filipinos,
especially as in this case where there is a high probability, if not certainty, that her parents are
Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability of improbability of the fact
in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that
from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total
number of Filipinos born in the country was 10,558,278. The statistical probability that any child born
in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62%of the population were Filipinos.
In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were
figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male
aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted,
during the oral arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino
1âw phi 1

features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of
nature and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical
Filipino features is abandoned in Catholic Church in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a
child born in the province would be a Filipino, would indicate more than ample probability if not
statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which
it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the
words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they
can get pregnant and leave their newborn babies behind. We do not face a situation where the
probability is such that every foundling would have a 50% chance of being a Filipino and a 50%
chance of being a foreigner. We need to frame our questions properly. What are the chances that
the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical probability that any child born
in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural born
Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a
foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children
here in the Philippines thinking those infants would have better economic opportunities or believing
that this country is a tropical paradise suitable for raising abandoned children. I certainly doubt
whether a foreign couple has ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may
be a theoretical chance that one among the thousands of these foundlings might be the child of not
just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make
any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a
natural born citizen, a decision denying foundlings such status is effectively a denial of their
birthright. There is no reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings. Your Honor,
constitutional interpretation and the use of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings,
there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The
natural children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish
territory are considered Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the child. Their parentage is not unknown and I think those
of overseas Filipino mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people born in
a country of unknown parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to
the notion that persons of "unknown parentage" are not citizens but only because their number was
not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include
as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen
of the Philippines, and also foundlings; but this amendment was defeated primarily because
the Convention believed that the cases, being too few to warrant the inclusion of a provision
in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it
was believed that the rules of international law were already clear to the effect that
illegitimate children followed the citizenship of the mother, and that foundlings followed the
nationality of the place where they were found, thereby making unnecessary the inclusion in
the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain
the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed
that there is no more need to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were
able to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos
under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by
Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings
to show that the constitution really intended to take this path to the dark side and inflict this across
the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees
full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which
requires the State to defend 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." Certainly, these provisions contradict an intent to discriminate
against foundlings on account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in
the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are
binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court
said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also
over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of
Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and
Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and include foundlings as among Filipino children who may be
adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance
of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or
perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship." In the first place, "having to perform an act" means that the act must be personally done
by the citizen. In this instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13
May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley
Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by civilized
nations.125 International customary rules are accepted as binding as a result from the combination of
two elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on principles which are
"basic to legal systems generally,"127 such as "general principles of equity, i.e., the general principles
of fairness and justice," and the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the same core principles
which underlie the Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State.130 Article 15 thereof
states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of
the UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name,
the right to acquire a nationality and as far as possible, the right to know and be cared for by his or
her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular where
the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"

Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are required
by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to
be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on
Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed
to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in cases
where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State
in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within the territory of parents possessing the nationality of that
State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines
is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of
the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to
Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of international law." Razon
v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international
law although the convention had been ratified by only sixteen states and had not even come into
force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner
points out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966 "Convention on
the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the
case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S.
laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that recognition of foreign judgments
was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which
are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition of
foreign judgments, were correctly considered as "generally accepted principles of international law"
under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those
countries follow the jus sanguinisregime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief
Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a generally accepted principle of international law
to presume foundlings as having been born of nationals of the country in which the foundling is
found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who
could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department, acting
through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption
that their parents are nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of nations. The Solicitor General's
warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political
status or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A.
No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that
since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of the former
Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is
categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will
... recover his natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth."
R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may
be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the
Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III
v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we
may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part
of the legal system of the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its
abandonment. Consequently, the people's reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her biological parents which
are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to
an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and
which certificate "shall not bear any notation that it is an amended issue."150 That law also requires
that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the
Department [of Social Welfare and Development], or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to
state that her adoptive parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same
case for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The
whole process undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed
false material representation when she stated in her COC that she has before and until 9 May 2016
been a resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016,
petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In
answer to the requested information of "Period of Residence in the Philippines up to the day before
May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases
corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in
a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile.152 To
successfully effect a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she
travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about 28,000 pounds to the
Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to
the Philippines; school records of her children showing enrollment in Philippine schools starting June
2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their corresponding tax declarations
issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of
petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work
and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as
of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the
presence of the first two requisites, namely, physical presence and animus manendi, but maintained
there was no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence
presented by petitioner on the basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was
approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents
also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an
alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner
was still an American (without any resident visa) until her reacquisition of citizenship under R.A. No.
9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by
the candidate and his declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue
there was whether the candidate's acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he
only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be
an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only
proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S.
schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment
of their address in the U.S., donating excess items to the Salvation Army, her husband resigning
from U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her
children in Philippine schools, buying property here, constructing a residence here, returning to the
Philippines after all trips abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines
visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An
Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has
been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes
a balikbayan program "providing the opportunity to avail of the necessary training to enable
the balikbayan to become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program."165 Obviously, balikbayans are not
ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is obviously granted him to allow him to re-establish his
life and reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then
applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other cases cited
by the respondents that the Court intended to have its rulings there apply to a situation where the
facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the
case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in
her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started
being a Philippine resident only in November 2006. In doing so, the COMELEC automatically
assumed as true the statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she
reckoned residency from April-May 2006 which was the period when the U.S. house was sold and
her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13
May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the
change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in
the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the
query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house
and the return of her husband is plausible given the evidence that she had returned a year before.
Such evidence, to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by
no means conclusive. There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the
candidate mistakenly put seven (7) months as her period of residence where the required period
was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth that she was in the Philippines from 24
May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because COMELEC took
the position that domicile could be established only from petitioner's repatriation under R.A. No. 9225
in July 2006. However, it does not take away the fact that in reality, petitioner had returned from the
U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident
for ten (10) years and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event
from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July
2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial
candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the stated period of
residence in the 2012 COC and the circumstances that surrounded the statement were already
matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for President on 15
October 2015, she could not be said to have been attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a
candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact
of residence, not the statement of the person that determines residence for purposes of compliance
with the constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not
even considered by the SET as an issue against her eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was
made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the
general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was mentioned in the COC
for Senator. Such other facts of residence have never been proven to be false, and these, to repeat
include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old
enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of
the family's remaining household belongings. [Petitioner] returned to the Philippines on 11 March
1a\^ /phi1

2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines
on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under
the exclusive ground of false representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
 Grace Poe vs COMELEC
(Case Digest: GR 221697, GR 221698-700 March 8, 2016)
Facts:
In her COC for presidency for the May 2016 elections, Grace Poe declared that she is a natural-born
citizen and that her residence in the Philippines up to the day before 9 May 2016 would be 10 years
and 11 months counted from 24 May 2005.

May 24, 2005 was the day she came to the Philippines after deciding to stay in the PH for
good. Before that however, and even afterwards, she has been going to and fro between US and
Philippines. She was born in 1968, found as newborn infant in Iloilo, and was legally adopted. She
immigrated to the US in 1991 and was naturalized as American citizen in 2001. On July 18, 2006,
the BI granted her petition declaring that she had reacquired her Filipino citizenship under RA
9225. She registered as a voter and obtained a new Philippine passport. In 2010, before assuming
her post as an appointed chairperson of the MTRCB, she renounced her American citizenship to
satisfy the RA 9225 requirement . From then on, she stopped using her American passport.

Petitions were filed before the COMELEC to deny or cancel her candidacy on the ground
particularly, among others, that she cannot be considered a natural-born Filipino citizen since she
cannot prove that her biological parents or either of them were Filipinos. The COMELEC en banc
cancelled her candidacy on the ground that she is in want of citizenship and residence requirements,
and that she committed material misrepresentations in her COC.

On certiorari, the SC reversed the ruling and held (9-6 votes) that Poe is qualified as a candidate for
Presidency. Three justices, however, abstained to vote on the natural-born citizenship issue.

Issue 1: W/N the COMELEC has jurisdiction to rule on the issue of qualifications of candidates (Read
Dissent)
Held:
No. Article IX-C, Sec 2 of the Constitution provides for the powers and functions of the COMELEC,
and deciding on the qualifications or lack thereof of a candidate is not one among them.

In contrast, the Constitution provides that only the SET and HRET tribunals have sole jurisdiction
over the election contests, returns, and qualifications of their respective members, whereas over the
President and Vice President, only the SC en banc has sole jurisdiction. As for the qualifications of
candidates for such positions, the Constitution is silent. There is simply no authorized proceeding in
determining the ineligibility of candidates before elections. Such lack of provision cannot be supplied
by a mere rule, and for the COMELEC to assimilate grounds for ineligibility into grounds
for disqualification in Rule 25 in its rules of procedures would be contrary to the intent of the
Constitution.
Hence, the COMELEC committed grave abuse of discretion when it decided on the qualification
issue of Grace as a candidate in the same case for cancellation of her COC.

Issue 2: W/N Grace Poe-Llamanzares is a natural-born Filipino citizen (Read Dissent)

Held:
Yes, Grace Poe might be and is considerably a natural-born Filipino. For that, she satisfies one of
the constitutional requirements that only natural-born Filipinos may run for presidency.

First, there is a high probability that Grace Poe’s parents are Filipinos. Her physical features are
typical of Filipinos. The fact that she was abandoned as an infant in a municipality where the
population of the Philippines is overwhelmingly Filipinos such that there would be more than 99%
chance that a child born in such province is a Filipino is also a circumstantial evidence of her
parents’ nationality. That probability and the evidence on which it is based are admissible under
Rule 128, Section 4 of the Revised Rules on Evidence. To assume otherwise is to accept the
absurd, if not the virtually impossible, as the norm.

Second, by votes of 7-5, the SC pronounced that foundlings are as a class, natural-born
citizens. This is based on the finding that the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. While
the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either. Because of silence and ambiguity in the
enumeration with respect to foundlings, the SC felt the need to examine the intent of the framers.
Third, that foundlings are automatically conferred with natural-born citizenship is supported by
treaties and the general principles of international law. Although the Philippines is not a signatory to
some of these treaties, it adheres to the customary rule to presume foundlings as having born of the
country in which the foundling is found.

Issue 3: W/N Grace Poe satisfies the 10-year residency requirement

Held:
Yes. Grace Poe satisfied the requirements of animus manendi coupled with animus revertendi in
acquiring a new domicile.

Grace Poe’s domicile had been timely changed as of May 24, 2005, and not on July 18, 2006 when
her application under RA 9225 was approved by the BI. COMELEC’s reliance on cases which
decree that an alien’s stay in the country cannot be counted unless she acquires a permanent
resident visa or reacquires her Filipino citizenship is without merit. Such cases are different from the
circumstances in this case, in which Grace Poe presented an overwhelming evidence of her actual
stay and intent to abandon permanently her domicile in the US. Coupled with her eventual
application to reacquire Philippine citizenship and her family’s actual continuous stay in the
Philippines over the years, it is clear that when Grace Poe returned on May 24, 2005, it was for
good.

Issue 4: W/N the Grace Poe’s candidacy should be denied or cancelled for committing material
misrepresentations in her COC
Held:
No. The COMELEC cannot cancel her COC on the ground that she misrepresented facts as to her
citizenship and residency because such facts refer to grounds for ineligibility in which the COMELEC
has no jurisdiction to decide upon. Only when there is a prior authority finding that a candidate is
suffering from a disqualification provided by law or the Constitution that the COMELEC may deny
due course or cancel her candidacy on ground of false representations regarding her qualifications.

In this case, by authority of the Supreme Court Grace Poe is now pronounced qualified as a
candidate for the presidency. Hence, there cannot be any false representations in her COC
regarding her citizenship and residency. ##

Carpio Dissent (Highlights): “Foundlings are Deemed Naturalized Filipino Citizens”

Brion Dissent (Highlights): “COMELEC’s Broad Quasi-Judicial Power Includes the Determination of a
Candidate’s Eligibility”
PROF. RANDOLF S. DAVID, LORENZO G.R. No. 171396
TA„ADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ Present:
BUTUYAN, ROGER R. RAYEL, GARY
S. MALLARI, ROMEL PANGANIBAN, C.J.,
*
REGALADO BAGARES, PUNO,
CHRISTOPHER F.C. BOLASTIG, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
GLORIA MACAPAGAL- CARPIO MORALES,
ARROYO, AS PRESIDENT CALLEJO, SR.,
AND COMMANDER-IN-CHIEF, AZCUNA,
EXECUTIVE SECRETARY EDUARDO TINGA,
ERMITA, HON. AVELINO CRUZ II, CHICO-NAZARIO,
SECRETARY OF NATIONAL GARCIA, and
DEFENSE, GENERAL GENEROSO VELASCO, JJ.
SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, Promulgated:
DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE May 3, 2006
NATIONAL POLICE,
Respondents.
x-------------------------------------------------x G.R. No. 171409
NI„EZ CACHO-OLIVARES AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,

- versus -

HONORABLE SECRETARY EDUARDO

ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C.
LOMIBAO,
Respondents.
x-------------------------------------------------x G.R. No. 171485
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,

- versus -

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. G.R. No. 171483
x-------------------------------------------------x
KILUSANG MAYO UNO,
REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY
GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR
UNIONS Ð 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,

- versus -

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

EXECUTIVE SECRETARY EDUARDO

R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x G.R. No. 171489
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,

- versus -

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
LOREN B. LEGARDA,
Petitioner,

- versus -

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.
x---------------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength Ð the use of force Ð 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. PanganibanÕs philosophy of liberty is thus most
relevant. He said: ÒIn 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.Ó Laws and actions that restrict
fundamental rights come to the courts Òwith a heavy presumption against their
constitutional validity.Ó[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5
(G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.

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

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of

the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
ÒThe President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .,Ó 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 Ð the historical enemies of the
democratic Philippine State Ð 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 Ð

by obstructing governance including hindering the growth of the
economy and sabotaging the peopleÕs 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 Ð 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 peopleÕs 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 PeopleÕs
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 petitionersÕ 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 respondentsÕ 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 Òshow 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.Ó [5]

On February 17, 2006, the authorities got hold of a document entitled ÒOplan
Hackle I Ó 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
PeopleÕs 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 ÒMagdaloÕs D-Day would be on February 24, 2006, the
20th Anniversary of Edsa I.Ó

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 ÒdisavowÓ any defection. The latter promptly obeyed and issued a public
statement: ÒAll SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.Ó

On the same day, at the house of former Congressman Peping Cojuangco,

President Cory AquinoÕs 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 groupÕs 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 ArmyÕs elite Scout Ranger. Lim said Òit was all systems go for
the planned movement against Arroyo.Ó[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 ÒKa RogerÓ Rosal
declared: ÒThe 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.Ó[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: ÒAnti-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.Ó 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 PresidentÕs 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 PresidentÕs mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that
Òwarrantless arrests and take-over of facilities, including media, can already be
implemented.Ó[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 Òmeant to show a Ôstrong presence,Õ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government.Ó The PNP warned that it would take over any media organization that
would not follow Òstandards set by the government during the state of national
emergency.Ó Director General Lomibao stated that Òif they do not follow the
standards Ð 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 Ð we will recommend a Ôtakeover.ÕÓ National TelecommunicationsÕ
Commissioner Ronald Solis urged television and radio networks
to ÒcooperateÓ with the government for the duration of the state of national
emergency. He asked for Òbalanced reportingÓ 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. BeltranÕs 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 Monta–o, former head of the Philippine

Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmari–as, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo,

Representative Rafael Mariano, Bayan Muna Representative Teodoro Casi–o 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 ÒBatasan 5Ó 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) it is a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech
and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares

and Tribune Publishing Co., Inc. challenged the CIDGÕs act of raiding the Daily
Tribune offices as a clear case of ÒcensorshipÓ or Òprior restraint.Ó They also
claimed that the term ÒemergencyÓ refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is Òabsolutely no emergencyÓ 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 Casi–o, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
Òusurpation of legislative powersÓ; Òviolation of freedom of expressionÓ and Òa
declaration of martial law.Ó They alleged that President Arroyo Ògravely 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.Ó

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members

averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of the
people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section
4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of
Article VI, and (d) Section 17[20] of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an Òarbitrary and unlawful exercise by the President of her Martial Law
powers.Ó And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that Òit amounts to an exercise by the President of emergency
powers without congressional approval.Ó In addition, petitioners asserted that PP
1017 Ògoes beyond the nature and function of a proclamation as defined under the
Revised Administrative Code.Ó

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are Òunconstitutional 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.Ó In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before
the Presidential Electoral Tribunal.

In respondentsÕ 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 peopleÕs 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) Whether the Supreme Court can review the factual bases of
PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests
on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people,

the ultimate source of all political authority. It confers limited powers on
the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of
judicial review.[22]

But the power of judicial review does not repose upon the courts a Òself-
starting capacity.Ó[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 Òdefinite and concrete, touching
the legal relations of parties having adverse legal interest;Ó 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 Òmoot and academicÓ by President ArroyoÕs issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events,[26] so that a declaration thereon would
be of no practical use or value.[27] Generally, courts decline jurisdiction over such
case[28] or dismiss it on ground of mootness.[29]

The Court holds that President ArroyoÕs 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 Òan unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative.Ó[30]

The Òmoot and academicÓ principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the situation and the paramount
public interest is involved;[32] third,when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;[33] and fourth, the case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this CourtÕs
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 publicÕs interest, involving as they do the
peopleÕs 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,
respondentsÕ 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. PanganibanÕs Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief JusticeÕs very
statement that an otherwise ÒmootÓ case may still be decided Òprovided 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.Ó 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 Òa right of appearance in a court of justice on a

given question.Ó[37] In private suits, standing is governed by the Òreal-parties-in
interestÓ rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that Òevery action must be prosecuted or defended in the
name of the real party in interest.Ó Accordingly, the Òreal-party-in interestÓ is
Òthe party who stands to be benefited or injured by the judgment in the suit or
the party entitled to the avails of the suit.Ó[38] Succinctly put, the plaintiffÕs
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 Òpublic rightÓ 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 Òstranger,Ó
or in the category of a Òcitizen,Ó or Ôtaxpayer.Ó 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 ÒcitizenÓ or Òtaxpayer.
 Case law in most jurisdictions now allows both ÒcitizenÓ and ÒtaxpayerÓ
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,[39] where it was held that the plaintiff in a taxpayerÕs suit is in a different
category from the plaintiff in a citizenÕs 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] ÒIn matter of mere public right,
howeverÉthe people are the real partiesÉIt 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.Ó With respect to
taxpayerÕs suits, Terr v. Jordan[41] held that Òthe 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.Ó

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 Òdirect injuryÓ 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 Òdirect injuryÓ test in our jurisdiction. In People
v. Vera,[44] it held that the person who impugns the validity of a statute must have
Òa personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result.Ó The Vera doctrine was upheld in a litany
of cases, such as, Custodio v. President of the Senate,[45] Manila Race Horse
TrainersÕ Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] 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
Òtranscendental importanceÓ 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 Òfar-
reaching implicationsÓ 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
Òtranscendental importance.Ó 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 Ògiven 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 reviewÓ 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 ÒBalikatan 02-01Ó involves the exercise of CongressÕ
taxing or spending powers, it reiterated its ruling in Bagong
[55]
Alyansang Makabayan v. Zamora, that in cases of transcendental
importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.

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

(1) 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 CourtÕs

attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status

of Kilosbayan as a peopleÕs 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 Òdirect injuryÓ test with respect to concerned
citizensÕ cases involving constitutional issues. It held that Òthere must be a
showing that the citizen personally suffered some actual or threatened injury arising
from the alleged illegal official act.Ó

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
PresidentÕs 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 Òdirect injuryÓ
resulting from Òillegal arrestÓ and Òunlawful searchÓ 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 Ta–ada 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, KMUÕs 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 Òliberality doctrineÓ 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
Òtranscendental importanceÓ doctrine, a relaxation of the standing requirements
for the petitioners in the ÒPP 1017 cases.Ó

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

Incidentally, it is not proper to implead President Arroyo as

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

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
ÒnecessaryÓ for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the
PresidentÕs exercise of his Commander-in-Chief power has reached its distilled
point - from the indulgent days of Barcelon v.
[70] [71]
Baker and Montenegro v. Castaneda 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 Òpolitical
questions,Ó particularly those questions Òin regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government.Ó[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,
Òunder 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,
[76]
constitutionally supreme.Ó In 1973, the unanimous Court of Lansang was
[77]
divided in Aquino v. Enrile. There, the Court was almost evenly
divided on the issue of whether the validity of the imposition of
[78]
Martial Law is a political or justiciable question. 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 Òin 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.Ó[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most

pertinent to these cases at bar -- echoed a principle similar to Lansang. While the
Court considered the PresidentÕs Òcalling-outÓ power as a discretionary power
solely vested in his wisdom, it stressed that Òthis 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.Ó This ruling is mainly a result of the CourtÕs 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 Òto settle actual controversies involving rights which are legally
demandable and enforceable,Ó but also Òto 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.Ó 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 PresidentÕs exercise of
power, Lansang adopted the test that Òjudicial inquiry can go no further than to
satisfy the Court not that the PresidentÕs decision is correct,Ó but that Òthe
President did not act arbitrarily.Ó Thus, the standard laid down is not correctness,
but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled
that Òit is incumbent upon the petitioner to show that the PresidentÕs decision
is totally bereft of factual basisÓ and that if he fails, by way of proof, to support
his assertion, then Òthis Court cannot undertake an independent investigation
beyond the pleadings.Ó

Petitioners failed to show that President ArroyoÕs exercise of the calling-out

power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor GeneralÕs 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 Òpower to act according to
discretion for the public good, without the proscription of the law and
sometimes even against it.Ó[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 Òthe people have no other remedy in this,
as in all other cases where they have no judge on earth, but to appeal to
Heaven.Ó[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 StateÉ

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 peopleÕs first intention is
that the State shall not perish.[86]
 Rosseau did not fear the abuse of the emergency dictatorship or Òsupreme
magistracyÓ as he termed it. For him, it would more likely be cheapened by
Òindiscreet use.Ó He was unwilling to rely upon an Òappeal to heaven.Ó 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:

ÒI am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship.Ó[88]

Nicollo MachiavelliÕs 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 Ðconstitutional 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 Ð in contrast to Locke, Rosseau and Mill Ð 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 Òno reason why
absolutism should not be used as a means for the defense of liberal
institutions,Ó provided it Òserves 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.Ó[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 Òimposing limitation upon that power.Ó[93] Watkins
placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: ÒThe period of dictatorship must be
relatively shortÉDictatorship should always be strictly legitimate in
characterÉFinal authority to determine the need for dictatorship in any given
case must never rest with the dictator himselfÉÓ[94] and the objective of such an
emergency dictatorship should be Òstrict political conservatism.Ó

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] ÒIt
is a problem of concentrating power Ð in a government where power has consciously
been divided Ð to cope withÉ 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.Ó[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme
of emergency powers, to wit: ÒThe emergency executive must be appointed by
constitutional means Ð 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.Ó[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 Òconstitutional dictatorshipÓ as
solution to the vexing problems presented by emergency. [98] Like Watkins and
Friedrich, he stated a priori the conditions of success of the Òconstitutional
dictatorship,Ó 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 orderÉ

2) Éthe decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will constitute
the dictatorÉ

3) No government should initiate a constitutional

dictatorship without making specific provisions for its
terminationÉ

4) Éall uses of emergency powers and all readjustments in

the organization of the government should be effected in pursuit of
constitutional or legal requirementsÉ

5) É 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 effectÉ

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 institutedÉ

11) Éthe 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
dictatorshipÉ[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, Òthe 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.Ó 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
ÒdictatorÓ is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers.
However used, Òconstitutional dictatorshipÓ cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus, they favored
instead the Òconcept of constitutionalismÓ 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 ÒlimitedÓ as distinguished from ÒweakÓ 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 Ð- from LockÕs Òtheory of prerogative,Ó to WatkinsÕ doctrine
of Òconstitutional dictatorshipÓ and, eventually, to McIlwainÕs Òprinciple of
constitutionalismÓ --- 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 JacksonÕs
Òbalanced power structure.Ó[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. ÒFacial ChallengeÓ

Petitioners contend that PP 1017 is void on its face because of its

Òoverbreadth.Ó They claim that its enforcement encroached on both unprotected
and protected rights under Section 4, Article III of the Constitution and sent a
Òchilling effectÓ 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 Òon their facesÓ statutes in free speech cases, also known under the
American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or

even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,[104] the US
Supreme Court held that Òwe have not recognized an ÔoverbreadthÕ doctrine
outside the limited context of the First AmendmentÓ (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that Òreflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct.Ó Undoubtedly, lawless
violence, insurrection and rebellion are considered ÒharmfulÓ and
Òconstitutionally unprotected conduct.Ó In Broadrick v. Oklahoma,[105] it was held:

It remains a Ômatter of no little difficultyÕ to determine when a

law may properly be held void on its face and when Ôsuch summary
actionÕ 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 Ôpure speechÕ toward
conduct and that conduct Ðeven if expressive Ð 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 Òspoken wordsÓ and again, that
Òoverbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.Ó[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 Òmanifestly strong

medicine,Ó to be used Òsparingly and only as a last resort,Ó and is Ògenerally
disfavored;Ó[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 Òon its face,Ó not merely Òas applied forÓ 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 Òchilling;Ó deterrent effect of
the overbroad statute on third parties not courageous enough to bring
suit. The Court assumes that an overbroad lawÕs Òvery existence may
cause others not before the court to refrain from constitutionally protected
speech or expression.Ó 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 ÒoverbreadthÓ doctrine is the Òvoid for vagueness doctrineÓ

which holds that Òa law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application.Ó[110] It is subject
to the same principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing Òon their facesÓ 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:

Òby virtue of the power vested upon me by Section 18, Artilce

VII É 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
rebellionÓ

Second provision:

Òand to enforce obedience to all the laws and to all decrees,

orders and regulations promulgated by me personally or upon my
direction;Ó

Third provision:

Òas provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.Ó

First Provision: Calling-out Power

The first provision pertains to the PresidentÕs 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 Congress, if not in session, shall within twenty-four hours

following such proclamation or suspension, convene in accordance with
its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to

persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

During the suspension of the privilege of the writ, any person

thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a ÒsequenceÓ 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
Òwhenever it becomes necessary,Ó the President may call the armed forces Òto
prevent or suppress lawless violence, invasion or rebellion.Ó 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 OfficeÕs 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 PresidentÕs 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

PresidentÕs authority to declare a Òstate of rebellionÓ (in Sanlakas) and the
authority to proclaim a state of national emergency. While President ArroyoÕs
authority to declare a Òstate of rebellionÓ 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. Ð Proclamations. Ð 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 ArroyoÕs declaration of a Òstate of rebellionÓ 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 StateÕs 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 Òwarn[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.Ó[113]

In his ÒStatement before the Senate Committee on JusticeÓ on March 13,

2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said
that of the three powers of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil liberties. It is a strong
medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
 Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only under
a valid declaration of Martial Law can be done. Its use for any other purpose is a
perversion of its nature and scope, and any act done contrary to its command is ultra
vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are powers
which can be exercised by the President as Commander-in-Chief only where there
is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

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 ArroyoÕs calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.

Second Provision: ÒTake CareÓ 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, Òexecute its laws.Ó[116] In the exercise of such function, the President, if
needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur

Ocampo, Rafael Mariano, Teodoro Casi–o, 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 Òto enforce obedience
to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.Ó

PetitionersÕ contention is understandable. A reading of PP 1017 operative

clause shows that it was lifted[120] from Former President MarcosÕ 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: Òto enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.Ó 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.Ó
 Is it within the domain of President Arroyo to promulgate ÒdecreesÓ?

PP 1017 states in
part: Òto enforce obedience to all the laws and decrees x x x promulgated
by me personally or upon my direction.Ó

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. Ñ 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. Ñ 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. Ñ 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. Ñ 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. Ñ 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. Ñ 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 ArroyoÕs 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 Òdecrees.Ó Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that Ò[t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives.Ó To be sure, neither Martial Law nor a state of rebellion nor a
state of emergency can justify President ArroyoÕs 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 Òlaws,Ó 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 Òto all the laws and to all decrees x x xÓ 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 Òmartial lawÓ thinking of the 1971 Constitutional Convention.[122] In effect at
the time of its approval was President MarcosÕ Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
Òthe 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.Ó
 Petitioners, particularly the members of the House of Representatives, claim
that President ArroyoÕs inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatureÕs emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the PresidentÕs authority to declare Òa

state of national emergencyÓ 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 Òother national emergency.Ó If the intention of the
Framers of our Constitution was to withhold from the President the authority to
declare a Òstate of national emergencyÓ 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 Òstate of
national emergency.Ó 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 Òthe 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,Ó 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 ÒThe
executive Power shall be vested in a President . . . .;Ó that Òhe shall take
Care that the Laws be faithfully executed;Ó and that he Òshall be
Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the

PresidentÕs 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 Òtheater of warÓ 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 nationÕs 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 PresidentÕs
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 ÒAll
legislative Powers herein granted shall be vested in a Congress of the
United States. . .Ó[126]
 Petitioner Cacho-Olivares, et al. contends that the term ÒemergencyÓ under
Section 17, Article XII refers to Òtsunami,Ó
Òtyphoon,Ó ÒhurricaneÓ and Òsimilar occurrences.Ó This is a limited view
of Òemergency.Ó

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]

ÒEmergency,Ó 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 CommitteeÕs definition of

Ònational emergencyÓ 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
Ònational emergency.Ó

MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]
 x x x x x x

MR. TINGSON. May I ask the committee if Ònational emergencyÓ

refers to military national emergency or could this be economic
emergency?Ó

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.

Òx 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 Ð 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 Ôthe various branches, executive, legislative, and
judicial,Õ given the ability to act, are called upon Ôto perform the
duties and discharge the responsibilities committed to them
respectively.Ó

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. ÒAS APPLIED CHALLENGEÓ

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 Òdirect injury.Ó

In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to celebrate the
20thAnniversary of People Power I. The arresting officers cited PP 1017 as basis
of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,

Inc. claimed that on February 25, 2006, the CIDG operatives Òraided and ransacked
without warrantÓ their office. Three policemen were assigned to guard their office
as a possible Òsource of destabilization.Ó Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were Òturned away and dispersedÓ when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the Òdirect injuriesÓ allegedly suffered by the said petitioners

shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the

basis of these illegal acts? In general, does the illegal implementation of a law
render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused[135] and may afford an
opportunity for abuse in the manner of application.[136] The validity of a statute
or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case.[137] PP 1017
is merely an invocation of the PresidentÕs 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 citizensÕ 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 Òacts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.Ó 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
Ònecessary and appropriate actions and measures to suppress and prevent acts
of terrorism and lawless violence.Ó

Unlike the term Òlawless violenceÓ which is unarguably extant in our statutes
and the Constitution, and which is invariably associated with Òinvasion, insurrection
or rebellion,Ó the phrase Òacts of terrorismÓ is still an amorphous and vague
concept. Congress has yet to enact a law defining and punishing acts of terrorism.
 In fact, this Òdefinitional predicamentÓ or the Òabsence of an agreed
definition of terrorismÓ 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 Òfight

against terrorismÓ 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 Òsponsoring terrorismÓ 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 Ð or threats

of the use of force as the most recent by the United States against Iraq Ð
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 ÒOne countryÕs

terrorist is another countryÕs freedom fighter.Ó The apparent
contradiction or lack of consistency in the use of the term ÒterrorismÓ
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 Ð

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 ÒterrorismÓ
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) Ð which is a terrorist group for Israel and a liberation movement
for Arabs and Muslims Ð the Kashmiri resistance groups Ð who are
terrorists in the perception of India, liberation fighters in that of Pakistan
Ð the earlier Contras in Nicaragua Ð freedom fighters for the United
States, terrorists for the Socialist camp Ð 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 Ð 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 ÒfluctuateÓ 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 Òliberation struggle,Ó
not of ÒterrorismÓ 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 Òpolicy of double
standardsÓ on this vital issue of international affairs has been the
unavoidable consequence.

This Òdefinitional predicamentÓ of an organization consisting of

sovereign states Ð and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! Ð 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 Òacts of terrorismÓ 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 ÒterrorismÓ 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 ÒCodifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive
Organizations.Ó The word ÒterrorismÓ is mentioned in the following
provision: ÒThat 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.Ó

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 Òacts of terrorism.Ó Since there
is no law defining Òacts of terrorism,Ó 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
Òacts of terrorismÓ 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 Òthe 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.Ó[142] The plain import of the
language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed
with power to issue or refuse to issue search warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are

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

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

Sec. 5. Arrest without warrant; when lawful. - A peace

officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense.

(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner

DavidÕs warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective ÒOust Gloria NowÓand 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.

ÒAssemblyÓ 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 seditionand violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officersÕ
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 Malaca–angÕs 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 Òfreedom 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.Ó[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 citizensÕ 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 personÕs
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. PetitionersÕ narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
TribuneÕs offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about
1:00 oÕ 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 Òmeant
to show a Ôstrong presence,Õ to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government.Ó Director
General Lomibao further stated that Òif they do not follow the standards Ðand
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
Ð we will recommend a Ôtakeover.ÕÓ National Telecommunications
Commissioner Ronald Solis urged television and radio networks
to ÒcooperateÓ with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
during times when the national security is threatened.[151]

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

Not only that, the search violated petitionersÕ freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed by its
media. In the Burgos v. Chief of Staff[152] this Court held that --

As heretofore stated, the premises searched were the business and

printing offices of the "Metropolitan Mail" and the "We ForumÓ
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
ÒMetropolitan MailÓ and ÒWe ForumÓ newspapers in the above case, yet it cannot
be denied that the CIDG operatives exceeded their enforcement duties. The search
and seizure of materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of government officials
to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its 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 TribuneÕs offices and the seizure of its materials for publication and
other papers are illegal; and that the same are inadmissible Òfor any purpose,Ó 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]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the

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

SOLGEN BENIPAYO:

Well, it was the police that did that, Your

Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is

illegal, it is not based on any law, and it is not based
on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor,

because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

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

SR. ASSO. JUSTICE PUNO:

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

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said,

I donÕt 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 donÕt 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 Òshould result in no constitutional or statutory breaches if
applied according to their letter.Ó

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 citizensÕ rights under the Constitution, this Court has to declare such acts
unconstitutional and illegal.

In this connection, Chief Justice Artemio V. PanganibanÕs 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 Ð a

supervening event Ð 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 Òif the May 1 ralliesÓ
become Òunruly and violent.Ó Consequently, the transcendental issues raised by
the parties should not be Òevaded;Ó 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 1017Õs
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 Ð acting as Commander-in-Chief Ð addressed to subalterns in the AFP
to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard Ð that the military and the police should take only the Ònecessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence.Ó But the words Òacts of terrorismÓ 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 ÒterrorismÓ 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 AFPÕs 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
peopleÕs 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 Ònecessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence.Ó Considering that Òacts of terrorismÓ 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.
 ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

David vs Arroyo
G.R. No. 171396 May 3, 2006

Facts: 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, On
the same day, the President issued G. O. No. 5 implementing PP 1017.
Seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed
against the respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.

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.

Issue: 1.Whether PP 107 is void because of its “overbreadth”

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

Held: No. 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.
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that “we have
not recognized an ‘overbreadth’ doctrine outside the limited context of the First
Amendment” (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct.” Undoubtedly, lawless violence, insurrection and rebellion are
considered “harmful” and “constitutionally unprotected conduct.” In Broadrick v.
Oklahoma,[105] it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void
on its face and when ‘such summary action’ is inappropriate. But the plain import of our
cases is, at the very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure
speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only “spoken words” and again, that “overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.”[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject
to state regulation.
Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be
used “sparingly and only as a last resort,” and is “generally disfavored;”[107] The reason for
this is obvious. Embedded in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be heard to challenge a law on
the ground that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.[108] A writer and scholar in Constitutional Law explains
further:

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.
A facial review of PP 1017 on the ground of vagueness is likewise 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.
2. 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.
489 SCRA 160 – Political Law – The Executive Branch – Presidential Proclamation 1017 –
Take Care Clause – Take Over Power – Calling Out Power
Bill of Rights – Freedom of Speech – Overbreadth
In February 2006, due to the escape of some Magdalo members and the discovery of a plan
(Oplan Hackle I) to assassinate the president, then president Gloria Macapagal-Arroyo
(GMA) issued Presidential Proclamation 1017 (PP1017) and is to be implemented by General
Order No. 5 (GO 5). The said law was aimed to suppress lawlessness and the connivance of
extremists to bring down the government.
Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time
revoked all permits issued for rallies and other public organization/meeting. Notwithstanding
the cancellation of their rally permit, Kilusang Mayo Uno (KMU) head Randolf David
proceeded to rally which led to his arrest.
Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by the CIDG
and they seized and confiscated anti-GMA articles and write ups. Later still, another known
anti-GMA news agency (Malaya) was raided and seized. On the same day, Beltran of
Anakpawis, was also arrested. His arrest was however grounded on a warrant of arrest issued
way back in 1985 for his actions against Marcos. His supporters cannot visit him in jail
because of the current imposition of PP 1017 and GO 5.
In March, GMA issued PP 1021 which declared that the state of national emergency ceased
to exist. David and some opposition Congressmen averred that PP1017 is unconstitutional
for it has no factual basis and it cannot be validly declared by the president for such power is
reposed in Congress. Also such declaration is actually a declaration of martial law. Olivares-
Cacho also averred that the emergency contemplated in the Constitution are those of natural
calamities and that such is an overbreadth. Petitioners claim that PP 1017 is an overbreadth
because it encroaches upon protected and unprotected rights. The Sol-Gen argued that the
issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the
declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the president’s calling
out power, take care power and take over power.
ISSUE: Whether or not PP 1017 and GO 5 is constitutional.
HELD: PP 1017 and its implementing GO are partly constitutional and partly unconstitutional.
The issue cannot be considered as moot and academic by reason of the lifting of the
questioned PP. It is still in fact operative because there are parties still affected due to the
alleged violation of the said PP. Hence, the SC can take cognition of the case at bar. The SC
ruled that PP 1017 is constitutional in part and at the same time some provisions of which are
unconstitutional. The SC ruled in the following way;
Resolution by the SC on the Factual Basis of its declaration
The petitioners were not able to prove that GMA has no factual basis in issuing PP 1017 and
GO 5. 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, GMA 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.
Resolution by the SC on the Overbreadth Theory
First and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on
their faces’ statutes in free speech cases. The 7 consolidated cases at bar are not primarily
‘freedom of speech’ cases. Also, 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. 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.’ 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.’ Here, the incontrovertible
fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.
Resolution by the SC on the Calling Out Power Doctrine
On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC 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. The SC ruled that GMA has validly declared PP 1017 for the
Constitution 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. 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.’ And such criterion has been met.
Resolution by the SC on the Take Care Doctrine
Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws
be faithfully executed.) the president declared PP 1017. David et al averred that PP 1017
however violated Sec 1, Art 6 of the Constitution for it arrogated legislative power to the
President. Such power is vested 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.’ The SC noted that such provision is similar to the power that granted
former President Marcos legislative powers (as provided in PP 1081). The SC ruled that the
assailed PP 1017 is unconstitutional insofar as it grants GMA the authority to promulgate
‘decrees.’ Legislative power is peculiarly within the province of the Legislature. Sec 1, Article
6 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 GMA’[s
exercise of legislative power by issuing decrees. The president can only “take care” of the
carrying out of laws but cannot create or enact laws.
Resolution by the SC on the Take Over Power Doctrine
The president cannot validly order the taking over of private corporations or institutions such
as the Daily Tribune without any authority from Congress. On the other hand, the word
emergency contemplated in the constitution is not limited to natural calamities but rather it
also includes rebellion. The SC made a distinction; the president can declare the state of
national emergency but her exercise of emergency powers does not come automatically after
it for such exercise needs authority from Congress. The authority from Congress must be
based on the following:
(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.
Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration
The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a
valid exercise of the calling out power of the president by the president.
G.R. No. 207264 October 22, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which stated that:
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of
discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the
COMELEC En Banc affirming the 27 March 2013 Resolution of the COMELEC First Division is
upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a determination
as regards her qualifications, she is merely asking the Honorable Court to affirm the jurisdiction of
the HRET to solely and exclusively pass upon such qualifications and to set aside the COMELEC
Resolutions for having denied Petitioner her right to due process and for unconstitutionally adding a
qualification not otherwise required by the constitution."1 (as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is duly
proclaimed winner and who has already taken her oath of office for the position of Member of the
House of Representatives for the lone congressional district of Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus: petitioner is
a duly proclaimed winner and having taken her oath of office as member of the House of
Representatives, all questions regarding her qualifications are outside the jurisdiction of the
COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's submission. The
crucial question is whether or not petitioner could be proclaimed on 18 May 2013. Differently stated,
was there basis for the proclamation of petitioner on 18 May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on 18 May 2013.
Without the proclamation, the petitioner's oath of office is likewise baseless, and without a precedent
oath of office, there can be no valid and effective assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of
the issue of petitioner's lack of Filipino citizenship and residency via its Resolution dated 14 May
2013. After 14 May 2013, there was, before the COMELEC, no longer any pending case on
petitioner's qualifications to run for the position of Member of the House of Representatives. x x x As
the point has obviously been missed by the petitioner who continues to argue on the basis of her
due proclamation, the instant motion gives us the opportunity to highlight the undeniable fact we
here repeat that the proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY
BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the
COMELEC En Banc has already denied for lack o merit the petitioner's motion to reconsider
the decision o the COMELEC First Division that CANCELLED petitioner's certificate of
candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation of

petitioner's certificate o candidacy which cancellation is a definite bar to her proclamation.
On 18 May 2003, that bar has not been removed, there was not even any attempt to remove
it.

3. The COMELEC Rules indicate the manner by which the impediment to proclamation may
be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the Commission En
Bane shall become final and executory after five (5) days from its promulgation unless
restrained by the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go to the Supreme Court for a
restraining order that will remove the immediate effect of the En Banc cancellation of her
certificate of candidacy. Within the five (5) days the Supreme Court may remove the barrier
to, and thus allow, the proclamation of petitioner. That did not happen. Petitioner did not
move to have it happen.

It is error to argue that the five days should pass before the petitioner is barred from being
proclaimed. Petitioner lost in the COMELEC as of respondent. Her certificate of candidacy
has been ordered cancelled. She could not be proclaimed because there was a final finding
against her by the COMELEC.3 She needed a restraining order from the Supreme Court to
avoid the final finding. After the five days when the decision adverse to her became
executory, the need for Supreme Court intervention became even more imperative. She
would have to base her recourse on the position that the COMELEC committed grave abuse
of discretion in cancelling her certificate of candidacy and that a restraining order, which
would allow her proclamation, will have to be based on irreparable injury and demonstrated
possibility of grave abuse of discretion on the part of the COMELEC. In this case, before and
after the 18 May 2013 proclamation, there was not even an attempt at the legal remedy,
clearly available to her, to permit her proclamation. What petitioner did was to "take the law
into her hands" and secure a proclamation in complete disregard of the COMELEC En Bane
decision that was final on 14 May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of Rule 18 in
the provision that the COMELEC En Bane or decision "SHALL become FINAL AND
EXECUTORY after five days from its promulgation unless restrained by the Supreme Court."
On its own the COMELEC En Bane decision, unrestrained, moves from promulgation into
becoming final and executory. This is so because in Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the Commission or a

division shall be made on a date previously fixed, of which notice shall be served in advance upon
the parties or their attorneys personally or by registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision on the very date of its
promulgation on 14 May 2013, petitioner admitted in her petition before us that she in fact
received a copy of the decision on 16 May 20 13.4 On that date, she had absolutely no
reason why she would disregard the available legal way to remove the restraint on her
proclamation, and, more than that, to in fact secure a proclamation two days thereafter. The
utter disregard of a final COMELEC En Bane decision and of the Rule stating that her
proclamation at that point MUST be on permission by the Supreme Court is even indicative
of bad faith on the part of the petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted proclamation as
the very reason to support her argument that she could no longer be reached by the
jurisdiction of the COMELEC; and that it is the HRET that has exclusive jurisdiction over the
issue of her qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at which she
directs, as well as in her objective quite obvious from such conclusion. It is with her procured
proclamation that petitioner nullifies the COMELEC's decision, by Division and then En Banc
and pre-empts any Supreme Court action on the COMELEC decision. In other words,
petitioner repudiates by her proclamation all administrative and judicial actions thereon, past
and present. And by her proclamation, she claims as acquired the congressional seat that
she sought to be a candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as Member of the House of
Representatives by virtue of a baseless proclamation knowingly taken, with knowledge of the
existing legal impediment.

8. Petitioner, therefore, is in error when she posits that at present it is the HRET which has
exclusive jurisdiction over her qualifications as a Member of the House of Representatives.
That the HRET is the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives is a written constitutional
provision. It is, however unavailable to petitioner because she is NOT a Member of the
House at present. The COMELEC never ordered her proclamation as the rightful winner in
the election for such membership.5 Indeed, the action for cancellation of petitioner's
certificate of candidacy, the decision in which is the indispensable determinant of the right of
petitioner to proclamation, was correctly lodged in the COMELEC, was completely and fully
litigated in the COMELEC and was finally decided by the COMELEC. On and after 14 May
2013, there was nothing left for the COMELEC to do to decide the case. The decision sealed
the proceedings in the COMELEC regarding petitioner's ineligibility as a candidate for
Representative of Marinduque. The decision erected the bar to petitioner's proclamation. The
bar remained when no restraining order was obtained by petitioner from the Supreme Court
within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning the
COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane decision, her
baseless proclamation on 18 May 2013 did not by that fact of promulgation alone become
valid and legal. A decision favorable to her by the Supreme Court regarding the decision of
the COMELEC En Bane on her certificate of candidacy was indispensably needed, not to
legalize her proclamation on 18 May 2013 but to authorize a proclamation with the Supreme
Court decision as basis.

10. The recourse taken on 25 June 2013 in the form of an original and special civil action for
a writ of Certiorari through Rule 64 of the Rules of Court is circumscribed by set rules and
principles.
 a) The special action before the COMELEC which was a Petition to Cancel
Certificate of Candidacy was a SUMMARY PROCEEDING or one heard summarily.
The nature of the proceedings is best indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that the Commission may designate any
of its officials who are members of the Philippine Bar to hear the case and to receive
evidence. COMELEC Rule 17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of oral testimonies, the parties
may, after due notice, be required to submit their position paper together with
affidavits, counter-affidavits and other documentary evidence; x x x and that this
provision shall likewise apply to cases where the hearing and reception of evidence
are delegated by the Commission or the Division to any of its officials x x x.

b) The special and civil action of Certiorari is defined in the Rules of Court thus:

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, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the exercise of the
COMELEC summary jurisdiction over the case, in conjunction with the limits of the Supreme Court's
authority over the FINAL COMELEC ruling that is brought before it, that defines the way petitioner's
submission before the Court should be adjudicated. Thus further explained, the disposition of 25
June 2013 is here repeated for affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of
"newly-discovered evidence" without the same having been testified on and offered and admitted in
evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the
photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was
a violation of her right to due process of law because she was not given the opportunity to question
and present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of
procedure in the presentation of evidence. Under Section 2 of Rule I the COMELEC Rules of
Procedure shall be liberally construed in order x x x to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission. In
view of the fact that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the newly discovered evidence was properly admitted by
respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given every
opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan's petition was
filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of
five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given
her.

Also, in administrative proceedings, procedural due process only requires that the party be given the
opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or require a
hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal
presentation but also, and perhaps many times more creditably and predictable than oral argument,
through pleadings. In administrative proceedings moreover, technical rules of procedure and
evidence are not strictly applied; administrative process cannot be fully equated with due process in
its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be he rd on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship, the
COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office the law
requires that she must have accomplished the following acts: (1) take the oath of allegiance to the
Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and
(2) make a personal and sworn renunciation of her American citizenship before any public officer
authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid requirements.
Early on in the proceeding, respondent hammered on petitioner's lack of proof regarding her
American citizenship, contending that it is petitioner's burden to present a case. She, however,
specifically denied that she has become either a permanent resident or naturalized citizen of the
USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated February 7,

2013, however, establishing the fact that respondent is a holder of an American passport which she
continues to use until June 30 2012 petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an American citizen
and is, therefore, ineligible to run for and hold any elective public office in the Philippines."
(Emphasis in the original.)

Let us look into the events that led to this petition: In moving for the cancellation of petitioner's COC,
respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a
US passport, and that her status is that of a balikbayan. At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has re-acquired such status in accordance with the provisions of R.A. No.
9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A.
No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner admitted that
she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen,
thus the requirements of R.A. No. 9225 do not apply to her. Still, attached to the said motion is an
Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner explains that
she attached said Affidavit if only to show her desire and zeal to serve the people and to comply with
rules, even as a superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner
executed said Affidavit if only to comply with the rules, then it is an admission that R.A. No. 9225
applies to her. Petitioner cannot claim that she executed it to address the observations by the
COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012. 1âw phi 1

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial
Administrator, to this effect: This does not mean that Petitioner did not, prior to her taking her oath of
office as Provincial Administrator, take her oath of allegiance for purposes of re-acquisition of
natural-born Filipino status, which she reserves to present in the proper proceeding. The reference
to the taking of oath of office is in order to make reference to what is already part of the records and
evidence in the present case and to avoid injecting into the records evidence on matters of fact that
was not previously passed upon by Respondent COMELEC. This statement raises a lot of questions
-Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she
did, why did she not present it at the earliest opportunity before the COMELEC? And is this an
admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner
contends that, since she took her oath of allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino
citizen.

This contention is misplaced. For one, this issue is being presented for the first time before this
Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be
considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as
prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing
Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus,
petitioner s oath of office as Provincial Administrator cannot be considered as the oath of allegiance
in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner s citizenship.
Petitioner, however, failed to clear such doubt.7

11. It may need pointing out that there is no conflict between the COMELEC and the HRET
insofar as the petitioner s being a Representative of Marinduque is concerned. The
COMELEC covers the matter of petitioner s certificate of candidacy, and its due course or its
cancellation, which are the pivotal conclusions that determines who can be legally
proclaimed. The matter can go to the Supreme Court but not as a continuation of the
proceedings in the COMELEC, which has in fact ended, but on an original action before the
Court grounded on more than mere error of judgment but on error of jurisdiction for grave
abuse of discretion. At and after the COMELEC En Bane decision, there is no longer any
certificate cancellation matter than can go to the HRET. In that sense, the HRET s
constitutional authority opens, over the qualification of its MEMBER, who becomes so only
upon a duly and legally based proclamation, the first and unavoidable step towards such
membership. The HRET jurisdiction over the qualification of the Member of the House of
Representatives is original and exclusive, and as such, proceeds de novo unhampered by
the proceedings in the COMELEC which, as just stated has been terminated. The HRET
proceedings is a regular, not summary, proceeding. It will determine who should be the
Member of the House. It must be made clear though, at the risk of repetitiveness, that no
 hiatus occurs in the representation of Marinduque in the House because there is such a
representative who shall sit as the HRET proceedings are had till termination. Such
representative is the duly proclaimed winner resulting from the terminated case of
cancellation of certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the parties: who shall sit
in the House in representation of Marinduque, while there is yet no HRET decision on the
qualifications of the Member.

12. As finale, and as explained in the discussion just done, no unwarranted haste can be
attributed, as the dissent does so, to the resolution of this petition promulgated on 25 June
2013. It was not done to prevent the exercise by the HRET of its constitutional duty. Quite
the contrary, the speedy resolution of the petition was done to pave the way for the
unimpeded performance by the HRET of its constitutional role. The petitioner can very well
invoke the authority of the HRET, but not as a sitting member of the House of
Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion was contained
in a letter to the members of the Court on the understanding that the matter was internal to the
Court. The ponente now seeks the Courts approval to have the explanation published as it is now
appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It may well be in
order to remind petitioner that jurisdiction, once acquired, is not lost upon the instance of the parties,
but continues until the case is terminated.9 When petitioner filed her Petition for Certiorari jurisdiction
vested in the Court and, in fact, the Court exercised such jurisdiction when it acted on the petition.
Such jurisdiction cannot be lost by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance, undoubtedly has
legal consequences. Petitioner cannot, by the mere expediency of withdrawing the petition, negative
and nullify the Court's Resolution and its legal effects. At this point, we counsel petitioner against
trifling with court processes. Having sought the jurisdiction of the Supreme Court, petitioner cannot
withdraw her petition to erase the ruling adverse to her interests. Obviously, she cannot, as she
designed below, subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is affirmed.
Entry of Judgment is ordered.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
G.R. No. 207264 : OCTOBER 22, 2013

REGINA ONGSIAKO REYES, Petitioner, v. COMMISSION ON ELECTIONS and

JOSEPH SOCORRO B. TAN, Respondents.

PEREZ, J.:

FACTS:

This is a Motion for Reconsideration of the En Banc Resolution of June 25, 2013
which found no grave abuse of discretion on the part of the Commission on
Elections and affirmed the March 27, 2013 Resolution of the COMELEC First
Division.

Petitioner raised the issue in the petition which is: Whether or not Respondent
COMELEC is without jurisdiction over Petitioner who is duly proclaimed winner and
who has already taken her oath of office for the position of Member of the House of
Representatives for the lone congressional district of Marinduque. Petitioner is a
duly proclaimed winner and having taken her oath of office as member of the House
of Representatives, all questions regarding her qualifications are outside the
jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner

submission.The crucial question is whether or not petitioner could be proclaimed on
May 18, 2013. Differently stated, was there basis for the proclamation of petitioner
on May 18 , 2013.

The June 25, 2013 resolution held that before May 18, 2013, the COMELEC En
Banc had already finally disposed of the issue of petitioner lack of Filipino citizenship
and residency via its resolution dated May 14, 2013, cancelling petitioner certificate
of candidacy. The proclamation which petitioner secured on May 18, 2013 was
without any basis. On June 10, 2013, petitioner went to the Supreme Court
questioning the COMELEC First Division ruling and the May 14, 2013 COMELEC En
Banc decision, baseless proclamation on 18 May 2013 did not by that fact of
promulgation alone become valid and legal.

ISSUE: Whether or not Petitioner was denied of due process?

HELD: Petitioner was denied of due process.

POLITICAL LAW: administrative due process

Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been testified
on and offered and admitted in evidence. She assails the admission of the blog
article of Eli Obligacion as hearsay and the photocopy of the Certification from the
Bureau of Immigration. She likewise contends that there was a violation of her right
to due process of law because she was not given the opportunity to question and
present controverting evidence.

It must be emphasized that the COMELEC is not bound to strictly adhere to the
technical rules of procedure in the presentation of evidence. Under Section 2 of Rule
I, the COMELEC Rules of Procedure "shall be liberally construed in order to achieve
just, expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission." In view of the fact that the proceedings
in a petition to deny due course or to cancel certificate of candidacy are summary in
nature, then the "newly discovered evidence" was properly admitted by respondent
COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was
given every opportunity to argue her case before the COMELEC. From 10 October
2012 when Tan's petition was filed up to 27 March 2013 when the First Division
rendered its resolution, petitioner had a period of five (5) months to adduce
evidence. Unfortunately, she did not avail herself of the opportunity given her.

In administrative proceedings, procedural due process only requires that the party
be given the opportunity or right to be heard. As held in the case of Sahali v.
COMELEC: The petitioners should be reminded that due process does not
necessarily mean or require a hearing, but simply an opportunity or right to be
heard. One may be heard, not solely by verbal presentation but also, and perhaps
many times more creditably and predictable than oral argument, through pleadings.
In administrative proceedings moreover, technical rules of procedure and evidence
are not strictly applied; administrative process cannot be fully equated with due
process in its strict judicial sense. Indeed, deprivation of due process cannot be
successfully invoked where a party was given the chance to be heard on his motion
for reconsideration.

In moving for the cancellation of petitioner's COC, respondent submitted records of

the Bureau of Immigration showing that petitioner is a holder of a US passport, and
that her status is that of a "balikbayan." At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino
citizen and has not lost the same, or that she has re-acquired such status in
accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that
she is a natural-born citizen, however, petitioner submitted no proof to support such
contention. Neither did she submit any proof as to the inapplicability of R.A. No.
9225 to her.
G.R. No. 180771 April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.

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

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-
Region VII, DOE Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,

a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the issues.
The human petitioners implead themselves in a representative capacity "as legal guardians of the
lesser life-forms and as responsible stewards of God's Creations."1 They use Oposa v. Factoran,
Jr.2 as basis for their claim, asserting their right to enforce international and domestic environmental
laws enacted for their benefit under the concept of stipulation pour autrui.3 As the representatives of
Resident Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Tañon Strait as well as to protect the environment,
especially in light of the government's failure, as primary steward, to do its duty under the doctrine of
public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to continue
to define environmental rights in the context of actual cases is commendable. However, the space
for legal creativity usually required for advocacy of issues of the public interest is not so unlimited
that it should be allowed to undermine the other values protected by current substantive and
procedural laws. Even rules of procedure as currently formulated set the balance between
competing interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were
able to communicate with them; and (d) they received clear consent from their animal principals that
they would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law cannot
be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights.
When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder, partner
or member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A 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. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and based
on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express rust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract involves things belonging to the
principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real
party in interest.10 The representative is an outsider to the cause of action. Second, the rule provides
a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits
the coverage only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals
are real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to
act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the issue
of whether animals have legal standing before courts has been the subject of academic discourse in
light of the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the same
way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an
enforceable right but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek judicial
redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already well-
equipped with a reliable mechanism by which nonhumans may obtain standing via a judicially
established guardianship. Stone notes that other speechless - and nonhuman - entities such as
corporations, states, estates, and municipalities have standing to bring suit on their own behalf.
There is little reason to fear abuses under this regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a guardianship are well established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to serve
as official guardians ad !item on behalf of nonhuman animals interests. The American legal system
has numerous mechanisms for representing the rights and interests of nonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to
an interest in the proper administration of justice. To adequately protect the statutory rights of
nonhuman animals, the legal system must recognize those statutory rights independent of humans
and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless
plaintiffs is not new and has been urged on behalf of the natural environment. 'Such a model is even
more compelling as applied to nonhuman animals, because they are sentient beings with the ability
to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally
protected nonhumans and therefore have interests deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided for
citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA).
Such provisions are evidence of legislative intent to encourage civic participation on behalf of
nonhuman animals. Our law of standing should reflect this intent and its implication that humans are
suitable representatives of the natural environment, which includes nonhuman animals.14 (Emphasis
supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive
disability), are unable to bring suit for themselves. They are also similar to entities that by their very
nature are incapable of speaking for themselves (e.g., corporations, states, and others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same
cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we represent
their best interests and can, therefore, speak for them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering of animals and that we know what remedy they
need in the face of an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court for
the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that
an emotional response to what humans perceive to be an injury inflicted on an animal is not within
the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of or as a
substitute for an actual injury suffered by the claimant.17 The ability to represent animals was further
limited in that case by the need to prove "genuine dedication" to asserting and protecting animal
rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.18 (Emphasis supplied, citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental
Cases. A citizen suit allows any Filipino to act as a representative of a party who has enforceable
rights under environmental laws before Philippine courts, and is defined in Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans
seriously carry their responsibility including ensuring a viable ecology for themselves, which of
course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given
to the rule on standing. While representatives are not required to establish direct injury on their part,
they should only be allowed to represent after complying with the following: [I]t is imperative for them
to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the
interest of those they represent must be based upon concrete legal rights. It is not sufficient to draw
out a perceived interest from a general, nebulous idea of a potential "injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great
caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would preclude future generations
from making their own assessment based on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even
before they are born, we again restricted their ability to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any countervailing
interests existing within the population represented or those that are yet to be born; and d) there is
an absolute necessity for such standing because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.23 (Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or
she who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be dismissed on the ground of
lack of cause of action if the person who instituted it is not the real party in interest.24 The term
"interest" under the Rules of Court must refer to a material interest that is not merely a curiosity
about or an "interest in the question involved." The interest must be present and substantial. It is not
a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to the
action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under
this rule allows any Filipino citizen to file an action for the enforcement of environmental law on
behalf of minors or generations yet unborn. It is essentially a representative suit that allows persons
who are not real parties in interest to institute actions on behalf of the real party in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity
of minors (represented by their parents) to file a class suit on behalf of succeeding generations
based on the concept of intergenerational responsibility to ensure the future generation's access to
and enjoyment of [the] country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata
upon them and conclusive upon the issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of "real
party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are. At
best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork, and representatives
have the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded
arguments"26 on behalf of those they represent.

Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it
carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human
petitioners have no legal standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest
and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose
rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46) directly
affected their source of livelihood, primarily felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage they suffered, which has potential long-term
effects transcending generations, is a proper subject of a legal suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners,
most especially when the implied petitioner was a sitting President of the Republic of the Philippines.
In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of
whales, dolphins, porpoises, and other cetacean species, human petitioners also impleaded Former
President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and
undertaking in the ASEAN Charter to protect Tañon Strait."28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent.
In our jurisdiction, only when there is a party that should have been a necessary party but was
unwilling to join would there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should
be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the
1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but
who do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does
not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due
process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's name
should be stricken out of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a
protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a
technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of
the 1987 Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of
paragraph 1, but is a validly executed contract under paragraph 4.34· Public respondents further aver
that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central Visayas Fisherfolk
Development Center's right to preferential use of communal marine and fishing resources.35

VI

Article XII, Section 2 of the 1987 Constitution states:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development, and
use of natural resources, but only through either financial agreements or technical ones. This is the
clear import of the words "either financial or technical assistance agreements." This is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploitation, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)

1935 CONSTITUTION
 ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.

The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from those who spoke
during the Constitutional Commission deliberations who may not have predicted how their words will
be used. It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society relies upon
even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.37(Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on behalf
of the government; and (c) whether it was reported by the President to Congress within 30 days of
execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972. It is my opinion that this law is unconstitutional in
1âwphi1

that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of
the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided
the rights and obligations of the parties should it be discovered that there is oil in commercial
quantities in the area. The Tañon Strait being a protected seascape under Presidential Decree No.
123439 requires that the exploitation and utilization of energy resources from that area are explicitly
covered by a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIP AS areas shall be allowed only through a law passed
by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could
have been validly undertaken under SC-46. The National Integrated Protected Areas System Act of
1992 is clear that exploitation and utilization of energy resources in a protected seascape such as
Tañon Strait shall only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary Vicente
S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the
Constitution or law requires the President to act personally on the matter, the duty cannot be
delegated to another public official.41 La Bugal highlights the importance of the President's
involvement, being one of the constitutional safeguards against abuse and corruption, as not mere
formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime.42 (Emphasis in
the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in
the signing or execution of SC-46. The failure to comply with this constitutional requirement renders
SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the validity of
any service contract involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity
for the legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.

I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null
and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas
System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."44 (Emphasis supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope
of the management plan for protected areas shall be subject to an environmental impact assessment
as required by law before they are adopted, and the results thereof shall be taken into consideration
in the decision-making process.45 (Emphasis supplied)

The same provision further requires that an Environmental Compliance Certificate be secured under
the Philippine Environmental Impact Assessment System before arty project is implemented:

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)

In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The program
shall also be submitted to the President, who in turn will recommend the program to Congress.
Furthermore, Congress must enact a law specifically allowing the exploitation of energy resources
found within a protected area such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be allowed only through a taw passed
by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46
fell under Section 14 of the National Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental Compliance Certificate
is not a strict requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve
or natural park; (b) the exploration was merely for gathering information; and ( c) measures were in
place to ensure that the exploration caused the least possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992
was enacted to recognize the importance of protecting the environment in light of resource
exploitation, among others.50 Systems are put in place to secure for Filipinos local resources under
the most favorable conditions. With the status of Tañon Strait as a protected seascape, the
institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based
on the records, JAPEX commissioned an environmental impact evaluation only in the second
subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas System
Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient species,
we do not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use
to survive and to thrive. We are not incapable of mitigating the greed that is slowly causing the
demise of our planet. Thus, there is no need for us to feign representation of any other species or
some imagined unborn generation in filing any action in our courts of law to claim any of our
fundamental rights to a healthful ecology. In this way and with candor and courage, we fully shoulder
the responsibility deserving of the grace and power endowed on our species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice
Resident Marine Mammals of the Protected Seascape Tañon Strait v.
Secretary Angelo Reyes
Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary
Angelo Reyes, G.R. No. 180771 (April 21, 2015)
Supreme Court of the Philippines

Two sets of petitioners filed separate cases challenging the legality of Service
Contract No. 46 (SC-46) awarded to Japan Petroleum Exploration Co.
(JAPEX). The service contract allowed JAPEX to conduct oil exploration in the
Tañon Strait during which it performed seismic surveys and drilled one
exploration well. The first petition was brought on behalf of resident marine
mammals in the Tañon Strait by two individuals acting as legal guardians and
stewards of the marine mammals. The second petition was filed by a non-
governmental organization representing the interests of fisherfolk, along with
individual representatives from fishing communities impacted by the oil
exploration activities. The petitioners filed their cases in 2007, shortly after
JAPEX began drilling in the strait. In 2008, JAPEX and the government of the
Philippines mutually terminated the service contract and oil exploration
activities ceased. The Supreme Court consolidated the cases for the purpose of
review.

In its decision, the Supreme Court first addressed the important procedural point
of whether the case was moot because the service contract had been
terminated. The Court declared that mootness is “not a magical formula that can
automatically dissuade the courts in resolving a case.” Id., p. 12. Due to the
alleged grave constitutional violations and paramount public interest in the case,
not to mention the fact that the actions complained of could be repeated, the
Court found it necessary to reach the merits of the case even though the
particular service contract had been terminated. Id.

Reviewing the numerous claims filed by the petitioners, the Supreme Court
narrowed them down to two: 1) whether marine mammals, through their
stewards, have legal standing to pursue the case; and 2) whether the service
contract violated the Philippine Constitution or other domestic laws. Id., p. 11.

As to standing, the Court declined to extend the principle of standing beyond

natural and juridical persons, even though it recognized that the current trend in
Philippine jurisprudence “moves towards simplification of procedures and
facilitating court access in environmental cases.” Id., p. 15. Instead, the Court
explained, “the need to give the Resident Marine Mammals legal standing has
been eliminated by our Rules, which allow any Filipino citizen, as a steward of
nature, to bring a suit to enforce our environmental laws.” Id., p. 16-17.

The Court then held that while SC-46 was authorized Presidential Decree No. 87
on oil extraction, the contract did not fulfill two additional constitutional
requirements. Section 2 Article XII of the 1987 Constitution requires a service
contract for oil exploration and extraction to be signed by the president and
reported to congress. Because the JAPEX contract was executed solely by the
Energy Secretary, and not reported to the Philippine congress, the Court held
that it was unconstitutional. Id., pp. 24-25.

In addition, the Court also ruled that the contract violated the National
Integrated Protected Areas System Act of 1992 (NIPAS Act), which generally
prohibits exploitation of natural resources in protected areas. In order to
explore for resources in a protected area, the exploration must be performed in
accordance with an environmental impact assessment (EIA). The Court noted
that JAPEX started the seismic surveys before any EIA was performed; therefore
its activity was unlawful. Id., pp. 33-34. Furthermore, the Tanon Strait is a NIPAS
area, and exploration and utilization of energy resources can only be authorized
through a law passed by the Philippine Congress. Because Congress had not
specifically authorized the activity in Tañon Strait, the Court declared that no
energy exploration should be permitted in that area. Id., p. 34.

Resident Marine Mammals of

the Protected Seascape of
Tañon Straight v. Reyes
G.R. No. 180771, 21 April 2015
FACTS:
June 13, 2002, the Government of the Philippines, acting through the DOE,
entered into a Geophysical Survey and Exploration Contract-102 (GSEC-102)
with JAPEX. This contract involved geological and geophysical studies of the
Tañon Strait.
May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon
Strait. A multi-channel sub-bottom profiling covering approximately 751
kilometers was also done to determine the area’s underwater composition.
January 31, 2007, the Protected Area Management Board of the Tañon Strait
(PAMB-Tañon Strait) issued Resolution No. 2007-001, wherein it adopted
the Initial Environmental Examination (IEE) commissioned by JAPEX, and
favorably recommended the approval of JAPEX’s application for an ECC.
March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and
JAPEX for the offshore oil and gas exploration project in Tañon
Strait. Months later, on November 16, 2007, JAPEX began to drill an
exploratory well, with a depth of 3,150 meters, near Pinamungajan town in
the western Cebu Province. This drilling lasted until February 8, 2008.
Petitioners then applied to this Court for redress, via two separate original
petitions both dated December 17, 2007, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among others,
violation of the 1987 Constitution.
ISSUE:
Whether or not the service contract is prohibited on the ground that there is
no general law prescribing the standard or uniform terms, conditions, and
requirements for service contracts involving oil exploration and extraction.
HELD:
No, the disposition, exploration, development, exploitation, and utilization
of indigenous petroleum in the Philippines are governed by Presidential
Decree No. 87 or the Oil Exploration and Development Act of 1972. This was
enacted by then President Ferdinand Marcos to promote the discovery and
production of indigenous petroleum through the utilization of government
and/or local or foreign private resources to yield the maximum benefit to
the Filipino people and the revenues to the Philippine Government.
Contrary to the petitioners’ argument, Presidential Decree No. 87, although
enacted in 1972, before the adoption of the 1987 Constitution, remains to be
a valid law unless otherwise repealed.
Moreover, in cases where the statute seems to be in conflict with the
Constitution, but a construction that it is in harmony with the Constitution is
also possible, that construction should be preferred. This Court,
in Pangandaman v. Commission on Elections expounding on this point,
pronounced: It is a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution and that the spirit,
rather than the letter of the law determines its construction; for that reason, a
statute must be read according to its spirit and intent.
Note that while Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may
be authorized, as will be discussed below, the exploitation and utilization of
this energy resource in the present case may be allowed only through a law
passed by Congress, since the Tañon Strait is a NIPAS area.