(e) to relocate the boundaries to conform with the Commissioners’ Report,
G.R. No. 141463 August 6, 2002
VICTOR ORQUIOLA and HONORATA ORQUIOLA, petitioners,
vs.
HON. COURT OF APPEALS, HON. VIVENCIO S. BACLIG, Presiding Judge,
Regional Trial Court, Branch 77, Quezon City, THE SHERIFF OF QUEZON
CITY and HIS/HER DEPUTIES and PURA KALAW LEDESMA, substituted
by TANDANG SORA DEVELOPMENT CORPORATION, respondents.
QUISUMBING, J.:
This petition for review seeks the reversal of the decision1 of the Court of
Appeals dated January 28, 1999 in CA-G.R. SP No. 47422, which dismissed
the petition to prohibit Judge Vivencio Baclig of the Regional Trial Court of
Quezon City, Branch 77, from issuing a writ of demolition against petitioners,
and the sheriff and deputy sheriff of the same court from implementing an alias
writ of execution. Also assailed is the resolution2 of the Court of Appeals dated
December 29, 1999 which denied petitioners’ motion for reconsideration.
The facts are as follows:
Pura Kalaw Ledesma was the registered owner of Lot 689, covered by TCT
Nos. 111267 and 111266, in Tandang Sora, Quezon City. This parcel of land
was adjacent to certain portions of Lot 707 of the Piedad Estates, namely, Lot
707-A and 707-B, registered in the name of Herminigilda Pedro under TCT
Nos. 16951 and 16952, respectively. On October 29, 1964, Herminigilda sold
Lot 707-A and 707-B to Mariano Lising who then registered both lots and Lot
707-C in the name of M.B. Lising Realty and subdivided them into smaller
lots.1âwphi1.nêt
Certain portions of the subdivided lots were sold to third persons including
herein petitioners, spouses Victor and Honorata Orquiola, who purchased a
portion of Lot 707-A-2, Lot 5, Block 1 of the subdivision plan (LRC), Psd-42965.
The parcel is now #33 Doña Regina St., Regina Village, Tandang Sora,
Quezon City. The other portions were registered in the name of the heirs of
Pedro, heirs of Lising, and other third persons.
Sometime in 1969, Pura Kalaw Ledesma filed a complaint, docketed as Civil
Case No. Q-12918, with the Regional Trial Court of Quezon City against
Herminigilda Pedro and Mariano Lising for allegedly encroaching upon Lot 689.
During the pendency of the action, Tandang Sora Development Corporation
replaced Pura Kalaw Ledesma as plaintiff by virtue of an assignment of Lot 689
made by Ledesma in favor of said corporation. Trial continued for three
decades.
On August 21, 1991, the trial court finally adjudged defendants Pedro and
Lising jointly and severally liable for encroaching on plaintiff’s land and ordered
them:
(a) to solidarily pay the plaintiff Tandang Sora Dev. Corp. actual damages
in the amount of P20,000 with interest from date of filing of the complaint;
(b) to remove all construction, including barbed wires and fences, illegally
constructed by defendants on plaintiff’s property at defendants’ expense;
(c) to replace the removed concrete monuments removed by defendants,
at their own expense;
(d) to pay attorney’s fees in the amount of FIVE THOUSAND PESOS
(P5,000.00) with interest computed from the date of filing of the complaint;
II.
particularly, Annexes "A" and "B" thereof, at the expense of the
defendants.3
As a result, in February 1998, the Deputy Sheriff of Quezon City directed
petitioners, through an alias writ of execution, to remove the house they
constructed on the land they were occupying.
On April 2, 1998, petitioners received a Special Order dated March 30, 1998,
from the trial court stating as follows:
Before the Court for resolution is the "Ex-Parte Motion For The Issuance
of A Writ of Demolition," filed by plaintiff, through counsel, praying for the
issuance of an Order directing the Deputy Sheriff to cause the removal
and/or demolition of the structures on the plaintiff’s property constructed
by defendants and/or the present occupants. The defendants-heirs of
Herminigilda Pedro filed their comment on the said Motion.
Considering that the decision rendered in the instant case had become
final and executory, the Court, in its Order of November 14, 1997, directed
the issuance of an alias writ of execution for the enforcement of the said
decision. However, despite the service of the said writ to all the
defendants and the present occupants of the subject property, they failed
to comply therewith, as per the Partial Sheriff’s Return, dated February 9,
1998, issued by the Deputy Sheriff of this branch of the Court. Thus, there
is now a need to demolish the structures in order to implement the said
decision.
WHEREFORE, the defendants are hereby directed to remove, at their
expense, all constructions, including barbed wires and fences, which
defendants constructed on plaintiff’s property, within fifteen (15) days from
notice of this Order; otherwise, this Court will issue a writ of demolition
against them.
SO ORDERED.4
To prohibit Judge Vivencio Baclig of the Regional Trial Court of Quezon City
from issuing a writ of demolition and the Quezon City sheriff from implementing
the alias writ of execution, petitioners filed with the Court of Appeals a petition
for prohibition with prayer for a restraining order and preliminary injunction on
April 17, 1998.5 Petitioners alleged that they bought the subject parcel of land
in good faith and for value, hence, they were parties in interest. Since they
were not impleaded in Civil Case No. Q-12918, the writ of demolition issued in
connection therewith cannot be enforced against them because to do so would
amount to deprivation of property without due process of law.
The Court of Appeals dismissed the petition on January 28, 1999. It held that
as buyers and successors-in-interest of Mariano Lising, petitioners were
considered privies who derived their rights from Lising by virtue of the sale and
could be reached by the execution order in Civil Case No. Q-12918. Thus, for
lack of merit, the petition was ordered dismissed.6
Petitioners’ motion for reconsideration was denied. Hence, this petition, where
petitioners aver that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE DECISION IN CIVIL CASE NO. Q-12918 CAN ALSO BE
ENFORCED AGAINST THE PETITIONERS EVEN IF THEY WERE NOT
IMPLEADED AS PARTIES THERETO.
THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING
PETITIONERS’ TITLE DESPITE THEIR BEING BUILDER IN GOOD
FAITH AND INNOCENT PURCHASER AND FOR VALUE.
III.
PETITIONERS ARE ENTITLED TO INJUNCTIVE RELIEF
CONSIDERING THAT THEY STAND TO SUFFER GRAVE AND
IRREPARABLE INJURY IF ALIAS WRIT OF EXECUTION AND THE
SPECIAL ORDER ISSUED BY THE COURT A QUO IN CIVIL CASE NO.
Q-12918 FOR THE DEMOLITION OF ALL THE STRUCTURES ON THE
DISPUTED PROPERTY WERE ENFORCED AGAINST THE
PETITIONERS WHO WERE NOT EVEN GIVEN THEIR DAY IN COURT. 7
For our resolution are the following issues: (1) whether the alias writ of
execution may be enforced against petitioners; and (2) whether petitioners
were innocent purchasers for value and builders in good faith.
On the first issue, petitioners claim that the alias writ of execution cannot be
enforced against them. They argue that the appellate court erred when it relied
heavily on our ruling in Vda. de Medina vs. Cruz8 in holding that petitioners are
successors-in-interest of Mariano Lising, and as such, they can be reached by
the order of execution in Civil Case No. Q-12918 even though they were not
impleaded as parties thereto. Petitioners submit that Medina is not applicable
in this case because the circumstances therein are different from the
circumstances in the present case.
In Medina, the property in dispute was registered under Land Registration Act
No. 496 in 1916 and Original Certificate of Title No. 868 was issued in the
name of Philippine Realty Corporation (PRC). In 1949, Benedicta Mangahas
and Francisco Ramos occupied and built houses on the lot without the PRC’s
consent. In 1959, PRC sold the lot to Remedios Magbanua. Mangahas and
Ramos opposed and instituted Civil Case No. C-120 to annul the sale and to
compel PRC to execute a contract of sale in their favor. The trial court
dismissed the complaint and ordered Mangahas and Ramos to vacate the lot
and surrender possession thereof to Magbanua. The judgment became final
and executory. When Magbanua had paid for the land in full, PRC executed a
deed of absolute sale in her favor and a new title was consequently issued in
her name. Magbanua then sought the execution of the judgment in Civil Case
No. C-120. This was opposed by petitioner Medina who alleged that she
owned the houses and lot subject of the dispute. She said that she bought the
houses from spouses Ricardo and Eufrocinia de Guzman, while she purchased
the lot from the heirs of the late Don Mariano San Pedro y Esteban. The latter
held the land by virtue of a Titulo de Composicion Con El Estado Num. 4136,
dated April 29, 1894. In opposing the execution, Medina argued that the trial
court did not acquire jurisdiction over her, claiming that she was not a party in
Civil Case No. C-120, thus, she could not be considered as "a person claiming
under" Ramos and Mangahas.
When Medina reached this Court, we held that the decision in Civil Case No.
C-120, which had long become final and executory, could be enforced against
petitioner even though she was not a party thereto. We found that the houses
on the subject lot were formerly owned by Mangahas and Ramos who sold
them to spouses de Guzman, who in turn sold them to Medina. Under the
circumstances, petitioner was privy to the two judgment debtors Mangahas and
Ramos, and thus Medina could be reached by the order of execution and writ
of demolition issued against the two. As to the lot under dispute, we sustained
Magbanua’s ownership over it, she being the holder of a Torrens title. We
declared that a Torrens title is generally conclusive evidence of ownership of
the land referred to therein, and a strong presumption exists that a Torrens title
was regularly issued and valid. A Torrens title is incontrovertible against
any informacion possessoria, or other title existing prior to the issuance thereof
not annotated on the Torrens title. Moreover, persons dealing with property
covered by a Torrens certificate of title are not required to go beyond what
appears on its face.
Medina markedly differs from the present case on major points. First, the
petitioner in Medina acquired the right over the houses and lot subject of the
dispute after the original action was commenced and became final and
executory. In the present case, petitioners acquired the lot before the
commencement of Civil Case No. Q-12918. Second, the right over the disputed
land of the predecessors-in-interest of the petitioner in Medina was based on a
title of doubtful authenticity, allegedly a Titulo de Composicion Con El
Estado issued by the Spanish Government in favor of one Don Mariano San
Pedro y Esteban, while the right over the land of the predecessors-in-interest of
herein petitioners is based on a fully recognized Torrens title. Third, petitioners
in this case acquired the registered title in their own names, while the petitioner
in Medina merely relied on the title of her predecessor-in-interest and tax
declarations to prove her alleged ownership of the land.
We must stress that where a case like the present one involves a sale of a
parcel of land under the Torrens system, the applicable rule is that a person
dealing with the registered property need not go beyond the certificate of title;
he can rely solely on the title and he is charged with notice only of such
burdens and claims as are annotated on the title.9 It is our view here that the
petitioners, spouses Victor and Honorata Orquiola, are fully entitled to the legal
protection of their lot by the Torrens system, unlike the petitioner in
the Medina case who merely relied on a mere Titulo de Composicion.
Coming now to the second issue, were petitioners purchasers in good faith and
for value? A buyer in good faith is one who buys the property of another
without notice that some other person has a right to or interest in such
property. He is a buyer for value if he pays a full and fair price at the time of the
purchase or before he has notice of the claim or interest of some other person
in the property.10 The determination of whether one is a buyer in good faith is a
factual issue which generally is outside the province of this Court to determine
in a petition for review. An exception is when the Court of Appeals failed to take
into account certain relevant facts which, if properly considered, would justify a
different conclusion.11 The instant case is covered by this exception to the
general rule. As found by the Court of Appeals and not refuted by private
respondent, petitioners purchased the subject land in 1964 from Mariano
Lising.12 Civil Case No. Q-12918 was commenced sometime in 1969. The
Court of Appeals overlooked the fact that the purchase of the land took place
prior to the institution of Civil Case No. Q-12918. In other words, the sale to
petitioners was made before Pura Kalaw Ledesma claimed the lot. Petitioners
could reasonably rely on Mariano Lising’s Certificate of Title which at the time
of purchase was still free from any third party claim. Hence, considering the
circumstances of this case, we conclude that petitioners acquired the land
subject of this dispute in good faith and for value.
The final question now is: could we consider petitioners builders in good faith?
We note that this is the first time that petitioners have raised this issue. As a
general rule, this could not be done. Fair play, justice, and due process dictate
that parties should not raise for the first time on appeal issues that they could
have raised but never did during trial and even during proceedings before the
Court of Appeals.13 Nevertheless, we deem it proper that this issue be resolved
now, to avoid circuitous litigation and further delay in the disposition of this
case. On this score, we find that petitioners are indeed builders in good faith.
A builder in good faith is one who builds with the belief that the land he is
building on is his, and is ignorant of any defect or flaw in his title.14 As earlier
discussed, petitioner spouses acquired the land in question without knowledge
of any defect in the title of Mariano Lising. Shortly afterwards, they built their
conjugal home on said land. It was only in 1998, when the sheriff of Quezon
City tried to execute the judgment in Civil Case No. Q-12918, that they had
notice of private respondent’s adverse claim. The institution of Civil Case No.
Q-12918 cannot serve as notice of such adverse claim to petitioners since they
were not impleaded therein as parties.
As builders in good faith and innocent purchasers for value, petitioners have
rights over the subject property and hence they are proper parties in interest in
any case thereon.15 Consequently, private respondents should have impleaded
them in Civil Case No. Q-12918. Since they failed to do so, petitioners cannot
be reached by the decision in said case. No man shall be affected by any
proceeding to which he is a stranger, and strangers to a case are not bound by
any judgment rendered by the court. In the same manner, a writ of execution
can be issued only against a party and not against one who did not have his
day in court. Only real parties in interest in an action are bound by the
judgment therein and by writs of execution and demolition issued pursuant
thereto.16 In our view, the spouses Victor and Honorata Orquiola have valid and
meritorious cause to resist the demolition of their house on their own titled lot,
which is tantamount to a deprivation of property without due process of
law.1âwphi1.nêt
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals
dated January 28, 1999, and its resolution dated December 29, 1999, in CA-
G.R. SP No. 47422, are REVERSED and SET ASIDE. Respondents are
hereby enjoined from enforcing the decision in Civil Case No. Q-12918 through
a writ of execution and order of demolition issued against petitioners. Costs
against private respondent.
SO ORDERED.
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and
KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE;
JOSE LUKBAN, in his capacity as Acting Director, National Bureau of
Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I.
PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G.
REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE
ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES
CALUAG, Court of First Instance of Rizal-Quezon City Branch, and
JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T.
David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor
Camilo D. Quiason and Solicitor C. Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1 —
hereinafter referred to as Respondents-Prosecutors — several judges2 —
hereinafter referred to as Respondents-Judges — issued, on different dates,3 a
total of 42 search warrants against petitioners herein4 and/or the corporations
of which they were officers,5 directed to the any peace officer, to search the
persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal
property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, portfolios, credit journals, typewriters, and other
documents and/or papers showing all business transactions including
disbursements receipts, balance sheets and profit and loss statements
and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the
offense," which is described in the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and
the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court — because, inter alia: (1)
they do not describe with particularity the documents, books and things to be
seized; (2) cash money, not mentioned in the warrants, were actually seized;
(3) the warrants were issued to fish evidence against the aforementioned
petitioners in deportation cases filed against them; (4) the searches and
seizures were made in an illegal manner; and (5) the documents, papers and
cash money seized were not delivered to the courts that issued the warrants, to
be disposed of in accordance with law — on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final
disposition of the present case, a writ of preliminary injunction be issued
restraining Respondents-Prosecutors, their agents and /or representatives from
using the effects seized as aforementioned or any copies thereof, in the
deportation cases already adverted to, and that, in due course, thereafter,
decision be rendered quashing the contested search warrants and declaring
the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3,
Rule 67, of the Rules of Court, the documents, papers, things and cash
moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested
search warrants are valid and have been issued in accordance with law; (2)
that the defects of said warrants, if any, were cured by petitioners' consent; and
(3) that, in any event, the effects seized are admissible in evidence against
herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed
for in the petition. However, by resolution dated June 29, 1962, the writ was
partially lifted or dissolved, insofar as the papers, documents and things seized
from the offices of the corporations above mentioned are concerned; but, the
injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of
the warrants in question may be split into two (2) major groups, namely: (a)
those found and seized in the offices of the aforementioned corporations, and
(b) those found and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of
action to assail the legality of the contested warrants and of the seizures made
in pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein
may be.8 Indeed, it is well settled that the legality of a seizure can be
contested only by the party whose rights have been impaired thereby,9 and that
the objection to an unlawful search and seizure is purely personal and cannot
be availed of by third parties. 10 Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers
and things seized from the offices and premises of the corporations adverted to
above, since the right to object to the admission of said papers in evidence
belongs exclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in
their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers
belonging to the corporation did not relate to nor did it affect
the personal defendants. If these papers were unlawfully seized and
thereby the constitutional rights of or any one were invaded, they were the
rights of the corporation and not the rights of the other defendants. Next, it
is clear that a question of the lawfulness of a seizure can be raised only by
one whose rights have been invaded. Certainly, such a seizure, if
unlawful, could not affect the constitutional rights of defendants whose
property had not been seized or the privacy of whose homes had not been
disturbed; nor could they claim for themselves the benefits of the Fourth
Amendment, when its violation, if any, was with reference to the rights
of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows,
therefore, that the question of the admissibility of the evidence based on
an alleged unlawful search and seizure does not extend to the personal
defendants but embraces only the corporation whose property was taken.
. . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786,
789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the
writ of preliminary injunction previously issued by this Court, 12 thereby, in
effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important
questions need be settled, namely: (1) whether the search warrants in
question, and the searches and seizures made under the authority thereof, are
valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against
petitioners herein.1äwphï1.ñët
Petitioners maintain that the aforementioned search warrants are in the nature
of general warrants and that accordingly, the seizures effected upon the
authority there of are null and void. In this connection, the
Constitution 13provides:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated,
and no warrants shall issue but upon probable cause, to be determined 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.
Two points must be stressed in connection with this constitutional mandate,
namely: (1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that
the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants.
Indeed, the same were issued upon applications stating that the natural and
juridical person therein named had committed a "violation of Central Ban Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code."
In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have
found the existence of probable cause, for the same presupposes the
introduction of competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in
this case do not allege any specific acts performed by herein petitioners. It
would be the legal heresy, of the highest order, to convict anybody of a
"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," — as alleged in the aforementioned
applications — without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims caprice or passion of peace
officers. This is precisely the evil sought to be remedied by the constitutional
provision above quoted — to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when
the party in power feels that the minority is likely to wrest it, even though by
legal means.
Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of
Rule 122 of the former Rules of Court 14 by providing in its counterpart, under
the Revised Rules of Court 15 that "a search warrant shall not issue but upon
probable cause in connection with one specific offense." Not satisfied with this
qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the
effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance
sheets and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining
to all business transactions of petitioners herein, regardless of whether the
transactions were legal or illegal. The warrants sanctioned the seizure of all
records of the petitioners and the aforementioned corporations, whatever their
nature, thus openly contravening the explicit command of our Bill of Rights —
that the things to be seized be particularly described — as well as tending to
defeat its major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-
Prosecutors maintain that, even if the searches and seizures under
consideration were unconstitutional, the documents, papers and things thus
seized are admissible in evidence against petitioners herein. Upon mature
deliberation, however, we are unanimously of the opinion that the position
taken in the Moncado case must be abandoned. Said position was in line with
the American common law rule, that the criminal should not be allowed to go
free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully
obtained, 17 such as the common-law action for damages against the searching
officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other
legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach
and eventually adopted the exclusionary rule, realizing that this is the only
practical means of enforcing the constitutional injunction against unreasonable
searches and seizures. In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent
as such, which has been unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional privilege. In earlier times the
action of trespass against the offending official may have been protection
enough; but that is true no longer. Only in case the prosecution which
itself controls the seizing officials, knows that it cannot profit by their
wrong will that wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already
declared:
If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution. The efforts of the courts
and their officials to bring the guilty to punishment, praiseworthy as they
are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent
decisions on the same Federal Court. 20After reviewing previous decisions
thereon, said Court held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation
of the right of privacy free from unreasonable state intrusion, and after its
dozen years on our books, are led by it to close the only courtroom door
remaining open to evidence secured by official lawlessness in flagrant
abuse of that basic right, reserved to all persons as a specific guarantee
against that very same unlawful conduct. We hold that all evidence
obtained by searches and seizures in violation of the Constitution is, by
that same authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States through the Due Process Clause of the
Fourteenth, it is enforceable against them by the same sanction of
exclusion as it used against the Federal Government. Were it otherwise,
then just as without the Weeks rule the assurance against unreasonable
federal searches and seizures would be "a form of words," valueless and
underserving of mention in a perpetual charter of inestimable human
liberties, so too, without that rule the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not
to permit this Court's high regard as a freedom "implicit in the concept of
 ordered liberty." At the time that the Court held in Wolf that the
amendment was applicable to the States through the Due Process
Clause, the cases of this Court as we have seen, had steadfastly held that
as to federal officers the Fourth Amendment included the exclusion of the
evidence seized in violation of its provisions. Even Wolf "stoutly adhered"
to that proposition. The right to when conceded operatively enforceable
against the States, was not susceptible of destruction by avulsion of the
sanction upon which its protection and enjoyment had always been
deemed dependent under the Boyd, Weeks and Silverthorne Cases.
Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches — state or federal — it was
logically and constitutionally necessarily that the exclusion doctrine — an
essential part of the right to privacy — be also insisted upon as an
essential ingredient of the right newly recognized by the Wolf Case. In
short, the admission of the new constitutional Right by Wolf could not
tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to grant the right but
in reality to withhold its privilege and enjoyment. Only last year the Court
itself recognized that the purpose of the exclusionary rule to "is to deter
— to compel respect for the constitutional guaranty in the only effectively
available way — by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy
the entire system of constitutional restraints on which the liberties of the
people rest. Having once recognized that the right to privacy embodied in
the Fourth Amendment is enforceable against the States, and that the
right to be secure against rude invasions of privacy by state officers is,
therefore constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner
and to like effect as other basic rights secured by its Due Process
Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and truth, gives
to the individual no more than that which the Constitution guarantees him
to the police officer no less than that to which honest law enforcement is
entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to
the spirit of the constitutional injunction against unreasonable searches and
seizures. To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given crime by
the party against whom the warrant is intended, then there is no reason why
the applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not
possible for the Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the
commission of a crime. But, then, this fishing expedition is indicative of the
absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an
illegal search warrant and/or make unreasonable searches or seizures would
suffice to protect the constitutional guarantee under consideration, overlooks
the fact that violations thereof are, in general, committed By agents of the party
in power, for, certainly, those belonging to the minority could not possibly
abuse a power they do not have. Regardless of the handicap under which the
minority usually — but, understandably — finds itself in prosecuting agents of
the majority, one must not lose sight of the fact that the psychological and
moral effect of the possibility 21 of securing their conviction, is watered down by
the pardoning power of the party for whose benefit the illegality had been
committed.
In their Motion for Reconsideration and Amendment of the Resolution of this
Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of
Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of
herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl
Beck, respectively, and that, furthermore, the records, papers and other effects
seized in the offices of the corporations above referred to include personal
belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under
the latest rulings of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession
of and control over the aforementioned records, papers and effects, and the
alleged "personal" nature thereof, has Been Advanced, not in their petition or
amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory
would appear to be readjustment of that followed in said petitions, to suit the
approach intimated in the Resolution sought to be reconsidered and amended.
Then, too, some of the affidavits or copies of alleged affidavits attached to said
motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now
advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions
said motion for reconsideration, and the contents of the aforementioned
affidavits and other papers submitted in support of said motion, have
sufficiently established the facts or conditions contemplated in the cases relied
upon by the petitioners; to warrant application of the views therein expressed,
should we agree thereto. At any rate, we do not deem it necessary to express
our opinion thereon, it being best to leave the matter open for determination in
appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as
it is hereby, abandoned; that the warrants for the search of three (3) residences
of herein petitioners, as specified in the Resolution of June 29, 1962, are null
and void; that the searches and seizures therein made are illegal; that the writ
of preliminary injunction heretofore issued, in connection with the documents,
papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the
documents, papers and other effects so seized in the aforementioned
residences are concerned; that the aforementioned motion for Reconsideration
and Amendment should be, as it is hereby, denied; and that the petition herein
is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and
other premises enumerated in the same Resolution, without special
pronouncement as to costs.
It is so ordered.
G.R. No. 153875 August 16, 2006
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y
LEONIDA, Accused-Appellants.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated June 20, 20021 of the Court
of Appeals (CA) which affirmed the Decision of the Regional Trial Court of the
City of Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case
No. 89-77467, finding the accused-appellants Otello Santiano y Leonida
(Santiano) and Rolando Dagani y Reyes (Dagani) guilty of the crime of Murder.
The accusatory portion of the Information reads:
That on or about September 11, 1989, in the City of Manila, Philippines, the
said accused conspiring and confederating together and mutually helping each
other did then and there, willfully, unlawfully and feloniously, with intent to kill,
evident premeditation and treachery, attack, assault and use of personal
violence upon one ERNESTO JAVIER Y FELIX by then and there shooting him
with a .38 caliber revolver, thereby inflicting upon the said ERNESTO JAVIER
Y FELIX mortal gunshot wounds which were the direct and immediate cause of
his death thereafter.
CONTRARY TO LAW.2
Upon arraignment, the appellants pleaded not guilty. Trial ensued where the
prosecution adduced evidence to establish the following:
At about 4:45 in the afternoon of September 11, 1989, a group composed of
Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals had
been drinking at the canteen located inside the compound of the Philippine
National Railways (PNR) along C.M. Recto Avenue, Tondo, Manila. All of a
sudden, appellants, who were security officers of the PNR and covered by the
Civil Service Rules and Regulations, entered the canteen and approached the
group. Appellant Dagani shoved Miran, causing the latter to fall from his chair.
Dagani then held Javier while Santiano shot Javier twice at his left side, killing
the latter.
The defense proceeded to prove their version of the facts:
Appellants testified that they were ordered by their desk officer to investigate a
commotion at the canteen. Upon reaching the place, Santiano ordered his co-
accused, Dagani, to enter, while the former waited outside.
Dagani approached Javier who had been striking a bottle of beer on the table.
Javier then pulled out a .22 caliber revolver and attempted to fire at Dagani, but
the gun failed to go off. Then suddenly, while outside the canteen, Santiano
heard gunfire and, from his vantage point, he saw Javier and Dagani grappling
for a .22 caliber gun which belonged to Javier. During the course of the
struggle, the gun went off, forcing Santiano to fire a warning shot. He heard
Javier’s gun fire again, so he decided to rush into the canteen. Santiano then
shot Javier from a distance of less than four meters.
Appellants invoked the justifying circumstances of self-defense and lawful
performance of official duty as PNR security officers. They also argued that the
prosecution failed to establish treachery and conspiracy.
The RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando
Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder defined
and punished under Art. 248, RPC, with the presence of the mitigating
circumstance of voluntary surrender and granting them the benefit of [the]
Indeterminate Sentence Law, both accused are hereby sentenced to each
suffer an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of
prision mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of
reclusion temporal x x x.
Both accused are hereby ordered to indemnify the heirs of the victim the sum
of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and burial
expenses, the sum of
P30,000.00 as and for [sic] attorney’s fees and the further sum of P1,000.00
per appearance of counsel.
Both accused shall be credited with the full extent of their preventive
imprisonment. Both accused are hereby committed to the Director, National
Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
SO ORDERED.3
In brief, the RTC held that appellants failed to prove that Javier attempted to
squeeze the trigger of the .22 caliber gun when he pointed it at Dagani; that
during the course of the struggle for the possession of the .22 caliber gun, the
danger to the life of the accused ceased to be imminent; that in grappling for
the weapon, Dagani "controlled" the hands of Javier and pushed them away
from his body; that the appellants failed to produce the two empty shells as
physical evidence of the gunfire allegedly caused by Javier; that no points of
entry or bullet markings on the walls of the canteen were shown; that, in light of
these findings, no unlawful aggression was present on the part of the victim;
that the appellants failed to prove that they were on official duty at the time of
the incidence; that, since it was not established that Javier actually fired his
gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of the due performance of an official duty; that the appellants
were acting in conspiracy; that the qualifying circumstance of treachery
attended the killing, considering that Javier had been shot while his hands were
being held by Dagani and as his body was out of balance and about to fall; and
that the mitigating circumstance of voluntary surrender should be appreciated
in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF
DEFENSE ON THE PART OF THE ACCUSED.
II THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT
THAT THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE
OF AN OFFICIAL DUTY.
III THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING
THAT THERE WAS CONSPIRACY.
IV THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE
PROSECUTION WAS ABLE TO ESTABLISH BEYOND REASONABLE
DOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.4
The CA rendered its Decision, the dispositive portion of which states:
WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants
are hereby sentenced to reclusion perpetua. The award for attorney’s fees and
appearance fees for counsel are hereby deleted. In all the other aspects, the
appealed decision is maintained.
Let the entire records of the case be elevated to the Supreme Court for the
mandated review.
SO ORDERED.5
The CA affirmed the findings of fact as well as the salient portions of the RTC
Decision, but deleted the award of attorney’s fees and the per appearance fees
of counsel since, the
CA reasoned, the instant case is criminal in nature which is under the control of
the public prosecutor, and, additionally, the RTC failed to justify this award in
the body of its Decision. And last, the CA found that the RTC erroneously
applied the Indeterminate Sentence Law since the penalty for Murder, at the
time of the incident, was reclusion perpetua which is an indivisible penalty to be
imposed in its entirety, regardless of the attending mitigating circumstance of
voluntary surrender.
Appellants are now before this Court submitting for resolution the same matters
argued before the CA. Through their Manifestation dated February 11,
2003,6 appellants prayed to dispense with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and
the responsible law officers to locate the appellants, the latter could not be
found and have jumped bail.7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred in
finding that there was no unlawful aggression on the part of the victim. They
insist that the victim, Javier, had been armed with a revolver at the time he was
struggling with appellant Dagani; that the former "could have easily killed the
latter;" that, given the fact that Javier had been drinking, "it is quite probable for
Javier to act harshly and aggressively towards
peace officers such as the accused;"8 and that Javier actually fired three shots
from his .22 caliber gun.9
We are not convinced.
When self-defense is invoked, the burden of evidence shifts to the accused to
show that the killing was legally justified. Having owned the killing of the victim,
the accused should be able to prove to the satisfaction of the Court the
elements of self-defense in order to avail of this extenuating circumstance. He
must discharge this burden by clear and convincing evidence. When
successful, an otherwise felonious deed would be excused, mainly predicated
on the lack of criminal intent of the accused. Self-defense requires that there
be (1) an unlawful aggression by the person injured or killed by the offender,
(2) reasonable necessity of the means employed to prevent or repel that
unlawful aggression, and (3) lack of sufficient provocation on the part of the
person defending himself. All these conditions must concur.10
Unlawful aggression, a primordial element of self-defense, would presuppose
an actual, sudden and unexpected attack or imminent danger on the life and
limb of a person – not a mere threatening or intimidating attitude11 – but most
importantly, at the time the defensive action was taken against the
aggressor.12 To invoke self-defense successfully, there must have been an
unlawful and unprovoked attack that endangered the life of the accused, who
was then forced to inflict severe wounds upon the assailant by employing
reasonable means to resist the attack.13
In the instant case, the assertions that it was "quite probable" that Javier,
during the course of the struggle for the firearm, "could have easily killed" the
appellants are uncertain and speculative. There is aggression in contemplation
of the law only when the one attacked faces real and immediate threat to one’s
life. The peril sought to be avoided must be imminent and actual, not just
speculative.14
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful aggression on the
part of Javier. They were unable to present evidence that the victim actually
fired his gun. No spent shells from the .22 caliber pistol were found and no
bullets were recovered from the scene of the incident. Javier also tested
negative for gunpowder residue. Moreover, the trial court found appellant
Dagani’s account of the incident to be incredible and self-serving. In sum, the
defense presented a bare claim of self-defense without any proof of the
existence of its requisites.15
Even if it were established that Javier fired his gun as the appellants so insist,
the imminence of the danger to their lives had already ceased the moment
Dagani held down the victim and grappled for the gun with the latter. After the
victim had been thrown off-balance, there was no longer any unlawful
aggression
that would have necessitated the act of killing.16 When an unlawful aggression
that has begun no longer exists, the one who resorts to self-defense has no
right to kill or even to wound the former aggressor.17 When Javier had been
caught in the struggle for the possession of the gun with appellant Dagani, the
grave peril envisaged by appellant Santiano, which impelled him to fire at the
victim, had then ceased to a reasonable extent,18 and undoubtedly, Santiano
went beyond the call of self-preservation when he proceeded to inflict the
excessive and fatal injuries on Javier, even when the alleged unlawful
aggression had already ceased.19
The second element of self-defense demands that the means employed to
neutralize the unlawful aggression are reasonable and necessary. It is settled
that reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law
requires is rational equivalence.20 The circumstances in their entirety which
surround the grappling of the firearm by Dagani and Javier, such as the nature
and number of gunshot wounds sustained by the victim21 which amounted to
two fatal wounds,22 that Dagani was able to restrain the hands of Javier and
push
them away from his body,23 that Dagani was larger than Javier and had
finished Special Weapons and Tactics (SWAT) hand-to-
hand combat training,24 and Javier, as admitted by the appellants, was
inebriated at the time of the incident,25 do not justify appellant Santiano’s act of
fatally shooting the victim twice.26
All things considered, the appellants’ plea of self-defense is not corroborated
by competent evidence. The plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any separate competent
evidence but is in itself extremely doubtful.27 Whether the accused acted in
self-defense is a question of fact. Like alibi, the affirmative defense of self-
defense is inherently weak because, as experience has demonstrated, it is
easy to fabricate and difficult to disprove.28 This Court, therefore, finds no
reversible error on the part of the courts a quo in rejecting the claim of self-
defense.
Appellants set up the defense that they were in the lawful performance of their
official duties. They specifically aver that they had been ordered by their desk
officer to proceed to the canteen in response to a telephone call stating that
there was a group "creating trouble;" that they were in the call of duty and
exercising their functions and responsibilities as members of the PNR Civil
Security Office to preserve peace and order and
protect the lives and property in the PNR Compound;29 and that, invoking
jurisprudence, as security officers in the performance of duty, like the police,
they must stand their ground and overcome the opponent, and the force that
may be exerted must differ from that which ordinarily may be offered in self-
defense.30
Article 11 of the Revised Penal Code provides that a person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not incur
any criminal liability. Two requisites must concur before this defense can
prosper: 1) the accused must have acted in the performance of a duty or in the
lawful exercise of a right or office; and 2) the injury caused or the offense
committed should have been the necessary consequence of such lawful
exercise.31 These requisites are absent in the instant case.
As found by the CA:
The defense failed to prove that the security officers were in fact on duty at the
time they were at the canteen. The trial court gave weight to the fact that the
appellants were unable to submit their daily time records to show that they
were on duty at the time. Appellants’ assertion that they were ordered to go on
24-hour duty was belied by PNR Security Investigator Rolando Marinay’s
testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m.
to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m.
Moreover, since it was not established that Javier fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of
appellants’ due performance of an official duty.32
As stated, considering that the imminent or actual danger to the life of the
appellants had been neutralized when Dagani grappled with Javier and
restrained his hands; that Javier had been thrown off-balance; that Dagani had
been specially trained for these purposes; and that Javier had been drinking
immediately prior to the scuffle, this Court holds that the fatal injuries that
appellant Santiano inflicted on the victim cannot be deemed to be necessary
consequences of the performance of his duty as a PNR security officer.33 While
it is recognized that police officers – if indeed the appellants can be likened to
them – must stand their ground and overwhelm their opponents, in People v.
Ulep,34 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last
resort, and under circumstances indicating that the offender cannot otherwise
be taken without bloodshed. The law does not clothe police officers with
authority to arbitrarily judge the necessity to kill. It may be true that police
officers sometimes find themselves in a dilemma when pressured by a situation
where an immediate and decisive, but legal, action is needed. However, it must
be stressed that the judgment and discretion of police officers in the
performance of their duties must be exercised neither capriciously nor
oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a
sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately
employ force and violence upon the persons they are apprehending. They
must always bear in mind that although they are dealing with criminal elements
against whom society must be protected, these criminals are also human
beings with human rights.35
But this Court cannot agree with the findings of the courts a quo that the
appellants were in conspiracy.
The RTC simply held:
The Information cited conspiracy of the accused. Since it can also be
committed thru simultaneous/concerted action and considering that Javier was
shot by Santiano while being held by Dagani, under jurisprudence, conspiracy
is present.36
The tenor of the factual findings of the CA is equally unsatisfactory:
Moreover, the facts show that Javier was shot by appellant Santiano as he was
being subdued by appellant Dagani. The trial court held that the manner of the
attack was indicative of a joint purpose and design by the appellants.37
Courts must judge the guilt or innocence of the accused based on facts and not
on mere conjectures, presumptions, or suspicions.38 Other than the plain fact
that the victim had been shot by one of the accused while being held by a co-
accused, there is no other evidence that the appellants were animated by the
same purpose or were moved by a previous common accord. It follows that the
liability of the accused must be determined on an individual basis. While no
formal agreement is necessary to establish conspiracy because conspiracy
may be inferred from the circumstances attending the commission of the crime,
yet, conspiracy must be established by clear and convincing evidence.39
This Court has held that even if all the malefactors joined in the killing, such
circumstance alone does not satisfy the requirement of conspiracy because the
rule is that
neither joint nor simultaneous action is per se sufficient proof of conspiracy.
Conspiracy must be shown to exist
as clearly and convincingly as the commission of the offense itself.40 Thus,
even assuming that Javier was simultaneously attacked, this does not prove
conspiracy. No evidence was presented to show that the appellants planned to
kill Javier or that Dagani’s overt acts facilitated that alleged plan. The
prosecution did not establish that the act of Dagani in trying to wrestle the gun
from Javier and in the process, held the latter’s hands, was for the purpose of
enabling Santiano to shoot at Javier. The prosecution had the burden to show
Dagani’s intentional participation to the furtherance of a common design and
purpose41 or that his action was all part of a scheme to kill Javier. That Dagani
did not expect Santiano to shoot the victim is established when Santiano
testified that Dagani "seem[ed] to be shocked, he was standing and looking at
the victim" as Javier gradually fell to the ground.42 And since Dagani’s
conviction can only be sustained if the crime had been carried out through a
conspiracy duly proven, in view of the failure of the prosecution to discharge
that burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC
declared:
[T]he Court believes that Javier was shot while his body was out-balanced and
about to fall to the right side and while his hands were being held by Dagani.
Javier, therefore, was shot at when he has no means to defend himself, hence,
the killing was attended by the qualifying circumstance of treachery.43
which the CA affirmed as follows:
The findings of the court a quo clearly showed that Javier was being held down
and could not effectively use his weapon. As such, the trial court held that
Javier could not be considered to be an armed man as he was being held
down and was virtually helpless.
It has been held that when an assault is made with a deadly weapon upon an
unarmed and unsuspecting victim who [was] given no immediate provocation
for the attack and under conditions which made it impossible for him to evade
the attack, flee or make [a] defense, the act is properly qualified as treachery,
and the homicide resulting therefrom is classified as murder.44 x x x
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as
the deliberate employment of means, methods or forms in the execution of a
crime against persons which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which the intended victim
might raise. Treachery is present when two conditions concur, namely: (1) that
the means, methods and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and (2) that such
means, methods and forms of execution were deliberately and consciously
adopted by the accused without danger to his person.45
This Court has held that the suddenness of the attack, the infliction of the
wound from behind the victim, the vulnerable position of the victim at the time
the attack was made, or the fact that the victim was unarmed, do not by
themselves render the
attack as treacherous.46 This is of particular significance in a case of an
instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally fell and was
rendered defenseless.47 The means employed for the commission of the crime
or the mode of attack must be shown to have been consciously or deliberately
adopted by the accused to insure the consummation of the crime and at the
same time eliminate or reduce the risk of retaliation from the intended
victim.48 For the rules on treachery to apply, the sudden attack must have been
preconceived by the accused, unexpected by the victim, and without
provocation on the part of the latter.49 Treachery is never presumed. Like the
rules on conspiracy, it is required that the manner of attack must be shown to
have been attended by treachery as conclusively as the crime itself.50
The prosecution failed to convincingly prove that the assault by the appellants
had been deliberately adopted as a mode of attack intended to insure the
killing of Javier and without the latter having the opportunity to defend himself.
Other than the bare fact that Santiano shot Javier while the latter had been
struggling with Dagani over the possession of the .22 caliber gun, no other fact
had been adduced to show that the appellants consciously planned or
predetermined the methods to insure the commission of the crime, nor had the
risk of the victim to
retaliate been eliminated during the course of the struggle over the weapon, as
the latter, though struggling, had not been
completely subdued. As already stated, this Court must emphasize that the
mere suddenness of the attack, or the vulnerable position of the victim at the
time of the attack, or yet even the fact that the victim was unarmed, do not by
themselves make the attack treacherous.51 It must be shown beyond
reasonable doubt that the means employed gave the victim no opportunity to
defend himself or retaliate, and that such means had been deliberately or
consciously adopted without danger to the life of the accused.52
For these reasons, the Court is inclined to look upon the helpless position of
Javier as merely incidental to the attack, and that the decision to shoot Javier
was made in an instant.53
Considering the rule that treachery cannot be inferred but must be proved as
fully and convincingly as the crime itself, any doubt as to its existence must be
resolved in favor of Santiano. Accordingly, for failure of the prosecution to
prove treachery to qualify the killing to Murder, appellant Santiano may only be
convicted of Homicide.54 The penalty, therefore, under Article 249 of the
Revised Penal Code, as amended, is reclusion temporal.
The Office of the Solicitor General is correct in that the courts a quo failed to
consider the aggravating circumstance of
taking advantage of official position under Article 14 (1) of the Revised Penal
Code, since the accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid of a gun he had
been authorized to carry as such.55Considering that the mitigating
circumstance of voluntary surrender, as duly appreciated by the courts a quo,
shall be offset against the aggravating circumstance of taking advantage of
official position, the penalty should be imposed in its medium period, pursuant
to Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano
will consist of a minimum that is anywhere within the full range of prision
mayor, and a maximum which is anywhere within reclusion temporal in its
medium period. This Court hereby fixes it to be from eight (8) years and one (1)
day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and
one (1) day of reclusion temporal, as maximum.
As to the award of damages, prevailing jurisprudence entitles the heirs of the
deceased to the amount of P50,000.00 as civil indemnity for the death of the
victim without need of any evidence or proof of damages.56
The CA erred in deleting the attorney’s fees and per appearance fees for lack
of factual basis. Although the CA is correct in noting that the RTC failed to
justify these awards in the body of its Decision, this appeal opens the entire
case for review and, accordingly, the records show that the foregoing
amounts had been stipulated by the parties,57 thereby dispensing with the need
to prove the same.58
As to moral damages, however, the widow of the victim, Erlinda Javier, is not
entitled to the same. She did not testify on any mental anguish or emotional
distress which she suffered as a result of her husband’s death. No other heirs
of Javier testified in the same manner.59
Inasmuch as the aggravating circumstance of taking advantage of official
position attended the killing, the Court awards exemplary damages in the
amount of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil
Code and prevailing jurisprudence.60
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304
dated June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is
found GUILTY beyond reasonable doubt of Homicide and is sentenced to
suffer the penalty of an indeterminate sentence from eight (8) years and one
(1) day of prision mayor as minimum to fourteen (14) years, eight (8) months,
and one (1) day of reclusion temporal as maximum. Appellant Santiano is
further ordered to pay the heirs of the victim the amounts of P50,000.00 as
death indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as
exemplary damages, P30,000.00 as attorney’s fees and P1,000.00
per appearance of counsel. Appellant Santiano shall be credited with the full
extent of his preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
SO ORDERED.
G.R. No. L-12592 March 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.
MALCOLM, J.:
This appeal presents the specific question of whether or not the defendants
and appellants are guilty of a libel of Roman Punsalan, justice of the peace of
Macabebe and Masantol, Province of Pampanga. The appeal also submits the
larger question of the attitude which the judiciary should take interpreting and
enforcing the Libel Law in connection with the basic prerogatives of freedom of
speech and press, and of assembly and petition. For a better understanding,
the facts in the present appeal are the first narrated in the order of their
occurrence, then certain suggestive aspects relative to the rights of freedom of
speech and press and of assembly and petition are interpolated, then the facts
are tested by these principles, and, finally, judgment is rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of
Pampanga assembled, and prepared and signed a petition to the Executive
Secretary through the law office of Crossfield and O'Brien, and five individuals
signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe
and Masantol, Pampanga, with malfeasance in office and asking for his
removal. Crossfield and O'Brien submitted this petition and these affidavits with
a complaint to the Executive Secretary. The petition transmitted by these
attorneys was signed by thirty-four citizens apparently of considerable
standing, including councilors and property owners (now the defendants), and
contained the statements set out in the information as libelous. Briefly stated
the specific charges against the justice of the peace were.
1. That Francisca Polintan, desiring to make complaint against Mariano de los
Reyes, visited the justice of the peace, who first told her that he would draw up
complaint for P5; afterwards he said he would take P3 which she paid; also
kept her in the house for four days as a servant and took from her two chickens
and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which was on
trial before the justice of the peace, went to see the justice of the peace to
ascertain the result of the trial, and was told by the justice of the peace that if
he wished to win he must give him P50. Not having this amount, Sunga gave
the justice nothing, and a few days later was informed that he had lost the
case. Returning again to the office of the justice of the peace in order to
appeal, the justice told him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against four
persons, on the day of the trial the justice called him over to his house, where
he secretly gave him (Quiambao) P30; and the complaint was thereupon
shelved.
The Executive Secretary referred the papers to the judge of first instance for
the Seventh Judicial District requesting investigation, proper action, and report.
The justice of the peace was notified and denied the charges. The judge of first
instance found the first count not proved and counts 2 and 3 established. In
view of this result, the judge, the Honorable Percy M. Moir, was of the opinion
"that it must be, and it is hereby, recommended to the Governor-General that
the respondent be removed from his position as justice of the peace of
Macabebe and Masantol, Province of Pampanga, and it is ordered that the
proceedings had in this case be transmitted to the Executive Secretary."
Later the justice of the peace filled a motion for a new trial; the judge of first
instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and six councilors
of Masantol, Pampanga, asserting that the justice of the peace was the victim
of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace,
had instituted the charges for personal reasons; and the judge of first instance
ordered a suppression of the charges against Punsalan and acquitted him the
same. Attorneys for complainants thereupon appealed to the Governor-
General, but whether the papers were forwarded to the Governor-General as
requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was
instituted on October 12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of
Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and
criminally and with malicious intent to prejudice and defame Mr. Roman
Punsalan Serrano who was at said time and place justice of the peace of
Macabebe and Masantol of this province, wrote, signed, and published a
writing which was false, scandalous, malicious, defamatory, and libelous
against the justice of the peace Mr. Roman Punsalan Serrano, in which
writing appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town
of Macabebe, on account of the conduct observed by him heretofore, a
conduct highly improper of the office which he holds, is found to be a
public functionary who is absolutely unfair, eminently immoral and
dangerous to the community, and consequently unworthy of the office.
That this assertion of the undersigned is evidenced in a clear and positive
manner by facts so certain, so serious, and so denigrating which appear in
the affidavits attached hereto, and by other facts no less serious, but
which the undersigned refrain from citing herein for the sake of brevity and
in order not to bother too much the attention of your Honor and due to lack
of sufficient proof to substantiate them.
That should the higher authorities allow the said justice of the peace of
this town to continue in his office, the protection of the rights and interests
of its inhabitants will be illusory and utopic; rights and interest solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not
be administered in accordance with law.
That on account of the wrongful discharge of his office and of his bad
conducts as such justice of the peace, previous to this time, some
respectable citizens of this town of Macabebe were compelled to present
an administrative case against the said Roman Punsalan Serrano before
the judge of first instance of Pampanga, in which case there were made
against him various charges which were true and certain and of different
characters.
That after the said administrative case was over, the said justice of the
peace, far from charging his bad and despicable conduct, which has
roused the indignation of this town of Macabebe, subsequently performed
the acts abovementioned, as stated in the affidavits herewith attached, as
if intending to mock at the people and to show his mistaken valor and
heroism.'
 All of this has been written and published by the accused with deliberate
purpose of attacking the virtue, honor, and reputation of the justice of the
peace, Mr. Roman Punsalan Serrano, and thus exposing him to public
hatred contempt, and ridicule. All contrary to law.
It should be noted that the information omits paragraphs of the petition
mentioning the investigation before the judge of first instance, the affidavits
upon which based and concluding words, "To the Executive Secretary, through
the office of Crossfield and O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of
Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty
and sentenced each of them to pay a fine of P10 and one thirty-second part of
the costs, or to suffer subsidiary imprisonment in case of insolvency. New
attorneys for the defense, coming into the case, after the handing down of the
decision, file on December 16, 1916, a motion for a new trial, the principal
purpose of which was to retire the objection interposed by the then counsel for
the defendants to the admission of Exhibit A consisting of the entire
administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed
making the following assignments of error:
1. The court erred in overruling the motion of the convicted defendants for
a new trial.
2. The court erred in refusing to permit the defendants to retire the
objection in advertently interposed by their counsel to the admission in
evidence of the expediente administrativo out of which the accusation in
this case arose.
3. The court erred in sustaining the objection of the prosecution to the
introduction in evidence by the accused of the affidavits upon which the
petition forming the basis of the libelous charge was based.
4. The court erred in not holding that the alleged libelous statement was
unqualifiedly privileged.
5. The court erred in assuming and impliedly holding that the burden was
on the defendants to show that the alleged libelous statements were true
and free from malice.
6. The court erred in not acquitting the defendants.
7. The evidence adduced fails to show the guilt of the defendants beyond
a reasonable doubt. This is especially true of all the defendants, except
Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative
and judicial, were properly before this court. As a matter of fact counsel for
defendants in the lower court made an improvident objection to the admission
of the administrative proceedings on the ground that the signatures were not
identified and that the same was immaterial, which objection was partially
sustained by the trial court. Notwithstanding this curious situation by reason of
which the attorney for the defense attempted to destroy through his objection
the very foundation for the justification of his clients, we shall continue to
consider all the proceedings as before us. Not indicating specifically the reason
for this action, let the following be stated: The administrative proceedings were
repeatedly mentioned during the trial. These proceedings were the basis of the
accusation, the information, the evidence, and the judgment rendered. The
prosecution cannot be understood without knowledge of anterior action.
Nothing more unjust could be imagined than to pick out certain words which
standing by themselves and unexplained are libelous and then by shutting off
all knowledge of facts which would justify these words, to convict the accused.
The records in question are attached to the rollo, and either on the ground that
the attorneys for the defense retired the objection to the introduction of the
administrative proceedings by the prosecution, or that a new trial should have
been had because under section 42 of the Code of Criminal Procedure "a case
may be reopened on account of errors at law committed at the trial," or
because of the right of this court to call in such records as are sufficiently
incorporated into the complaint and are essential to a determination of the
case, or finally, because of our conceded right to take judicial notice of official
action in administrative cases and of judicial proceedings supplemental to the
basis action, we examine the record as before us, containing not alone the trial
for libel, but the proceedings previous to that trial giving rise to it. To this action,
the Government can not explain for it was the prosecution which tried to
incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain principles
which make up the law of libel and slander, we feel warranted in seizing the
opportunity to intrude an introductory and general discussion of freedom of
speech and press and assembly and petition in the Philippine Islands. We
conceive that the time is ripe thus to clear up certain misapprehensions on the
subject and to place these basic rights in their proper light.
Turning to the pages of history, we state nothing new when we set down that
freedom of speech as cherished in democratic countries was unknown in the
Philippine Islands before 1900. A prime cause for revolt was consequently
ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The Philippines a
Century Hence, pages 62 et seq.) describing "the reforms sine quibus non,"
which the Filipinos insist upon, said: "
The minister, . . . who wants his reforms to be reforms, must begin by
declaring the press in the Philippines free and by instituting Filipinos
delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and by
other means invariably in exposing the wants of the Filipino people demanded
"liberty of the press, of cults, and associations." (See Mabini, La Revolucion
Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in
its Bill of Rights, zealously guarded freedom of speech and press and
assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a
reform so sacred to the people of these Islands and won at so dear a cost,
should now be protected and carried forward as one would protect and
preserve the covenant of liberty itself.
Next comes the period of American-Filipino cooperative effort. The Constitution
of the United States and the State constitutions guarantee to the right of
freedom of speech and press and the right of assembly and petition. We are
therefore, not surprised to find President McKinley in that Magna Charta of
Philippine Liberty, the Instructions to the Second Philippine Commission, of
April 7, 1900, laying down the inviolable rule "That no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for a redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the
Act of Congress of August 29, 1916, in the nature of organic acts for the
Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American
people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be
forgotten for an instant that the guaranties mentioned are part and parcel of the
Organic Law — of the Constitution — of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare
verbiage. The language carries with all the applicable jurisprudence of great
English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U.
S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these
principles? Volumes would inadequately answer. But included are the
following:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Completely liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the intelligence and
the dignity of the individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as the individual is less than the State, so must
expected criticism be born for the common good. Rising superior to any official
or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary
— to any or all the agencies of Government — public opinion should be the
constant source of liberty and democracy. (See the well considered cases of
Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F.,
372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize
judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit subject
for proper comment. If the people cannot criticize a justice of the peace or a
judge the same as any other public officer, public opinion will be effectively
muzzled. Attempted terrorization of public opinion on the part of the judiciary
would be tyranny of the basest sort. The sword of Damocles in the hands of a
judge does not hang suspended over the individual who dares to assert his
prerogative as a citizen and to stand up bravely before any official. On the
contrary, it is a duty which every one owes to society or to the State to assist in
the investigation of any alleged misconduct. It is further the duty of all who
know of any official dereliction on the part of a magistrate or the wrongful act of
any public officer to bring the facts to the notice of those whose duty it is to
inquire into and punish them. In the words of Mr. Justice Gayner, who
contributed so largely to the law of libel. "The people are not obliged to speak
of the conduct of their officials in whispers or with bated breath in a free
government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App.
Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican
institutions and the complement of the part of free speech. Assembly means a
right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply,
without fear of penalty, to the appropriate branch or office of the government
for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.
Public policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.
 The doctrine of privileged communications rests upon public policy, 'which
looks to the free and unfettered administration of justice, though, as an
incidental result, it may in some instances afford an immunity to the evil-
disposed and malignant slanderer.' (Abbott vs. National Bank of
Commerce, Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not
concerned. As to qualified privilege, it is as the words suggest a prima
facie privilege which may be lost by proof of malice. The rule is thus stated by
Lord Campbell, C. J.
A communication made bona fide upon any subject-matter in which the
party communicating has an interest, or in reference to which has a duty,
is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would
be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1
Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint
made in good faith and without malice in regard to the character or conduct of
a public official when addressed to an officer or a board having some interest
or duty in the matter. Even when the statements are found to be false, if there
is probable cause for belief in their truthfulness and the charge is made in good
faith, the mantle of privilege may still cover the mistake of the individual. But
the statements must be made under an honest sense of duty; a self-seeking
motive is destructive. Personal injury is not necessary. All persons have an
interest in the pure and efficient administration of justice and of public affairs.
The duty under which a party is privileged is sufficient if it is social or moral in
its nature and this person in good faith believes he is acting in pursuance
thereof although in fact he is mistaken. The privilege is not defeated by the
mere fact that the communication is made in intemperate terms. A further
element of the law of privilege concerns the person to whom the complaint
should be made. The rule is that if a party applies to the wrong person through
some natural and honest mistake as to the respective functions of various
officials such unintentional error will not take the case out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege
destroy that presumption. The onus of proving malice then lies on the plaintiff.
The plaintiff must bring home to the defendant the existence of malice as the
true motive of his conduct. Falsehood and the absence of probable cause will
amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.)
A privileged communication should not be subjected to microscopic
examination to discover grounds of malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. (See White vs. Nicholls
[1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs.
Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp.
308, 309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et
seq.)
Having ascertained the attitude which should be assumed relative to the basic
rights of freedom of speech and press and of assembly and petition, having
emphasized the point that our Libel Law as a statute must be construed with
reference to the guaranties of our Organic Law, and having sketched the
doctrine of privilege, we are in a position to test the facts of this case with these
principles.
It is true that the particular words set out in the information, if said of a private
person, might well be considered libelous per se. The charges might also
under certain conceivable conditions convict one of a libel of a government
official. As a general rule words imputing to a judge or a justice of the peace
dishonesty or corruption or incapacity or misconduct touching him in his office
are actionable. But as suggested in the beginning we do not have present a
simple case of direct and vicious accusations published in the press, but of
charges predicated on affidavits made to the proper official and thus qualifiedly
privileged. Express malice has not been proved by the prosecution. Further,
although the charges are probably not true as to the justice of the peace, they
were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office
existed is apparent. The ends and the motives of these citizens— to secure the
removal from office of a person thought to be venal — were justifiable. In no
way did they abuse the privilege. These respectable citizens did not eagerly
seize on a frivolous matter but on instances which not only seemed to them of
a grave character, but which were sufficient in an investigation by a judge of
first instance to convince him of their seriousness. No undue publicity was
given to the petition. The manner of commenting on the conduct of the justice
of the peace was proper. And finally the charges and the petition were
submitted through reputable attorneys to the proper functionary, the Executive
Secretary. In this connection it is sufficient to note that justices of the peace are
appointed by the Governor-General, that they may be removed by the
Governor-General upon the recommendation of a Judge of First Instance, or
on the Governor-General's own motion, and that at the time this action took
place the Executive Bureau was the office through which the Governor-General
acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in
connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of
Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject
to removal by the sovereign, a communication to the Secretary of State was
privileged.)
The present facts are further essentially different from those established in
other cases in which private individuals have been convicted of libels of public
officials. Malice, traduction, falsehood, calumny, against the man and not the
officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado
[1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs.
Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the case
of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos
case, the Attorney-General says, is identical with the Felipe Bustos case, with
the exception that there has been more publicity in the present instance and
that the person to whom the charge was made had less jurisdiction than had
the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the
charge against Punsalan is in fact a privileged communication. Moreover, in
the Julio Bustos case we find wild statements, with no basis in fact, made
against reputable members of the judiciary, "to persons who could not furnish
protection." Malicious and untrue communications are not privileged. A later
case and one more directly in point to which we invite especial attention is
United States vs. Galeza ([1915], 31 Phil., 365). (Note alsoYancey vs.
Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules
concerning qualified privilege, growing out of constitutional guaranties in our bill
of rights. Instead of punishing citizens for an honest endeavor to improve the
public service, we should rather commend them for their good citizenship. The
defendants and appellants are acquitted with the costs de officio. So ordered.
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI
Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon
Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and
alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO
M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
Director of the Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine
National Police, MANUEL A. ROXAS II, Secretary of the Department of the
Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of
Investigation (all of the Executive Department of
Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND
THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN
B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of
the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity
as Director, National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as
President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON
C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R.
ROJAS, in his official capacity as Director of the National Bureau of
Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in
his official capacity as Chief of the Philippine National
Police,Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN
THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO,
MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN,
NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act
(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and
void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information
that he needs for research, study, amusement, upliftment, or pure
curiosity;
2. Post billboard-like notices or messages, including pictures and videos,
for the general public or for special audiences like associates, classmates,
or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or
bully the latter by posting defamatory statements against him that people can
read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking
into or surreptitiously accessing his bank account or credit card or defrauding
him through false representations. The wicked can use the cyberspace, too, for
illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate
right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause
havoc to the computer systems and networks of indispensable or highly useful
institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent
these tomfooleries from happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until
further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for
their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and
should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and
that it is the least restrictive means to protect such interest.2 Later, the strict
scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as
expansion from its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for
the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
systems to be tested. This is referred to as the "get out of jail free card."6Since
the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of
viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has
no connection to guaranteed freedoms. There is no freedom to destroy other
people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it
seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad
faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example,
supposing there exists a well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another
who registers the name because it happens to be his real name. Petitioners
claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens
to be his real name or use it as a pseudo-name for it is the evil purpose for
which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging
to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom of
the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in itself fully deserving
of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord to
these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from
our adherence to the Universal Declaration of Human Rights which mandates
that, "no one shall be subjected to arbitrary interference with his privacy" and
"everyone has the right to the protection of the law against such interference or
attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the right to
be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person
has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine
will not hold water since the specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire another’s personal
data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in
that journalists would be hindered from accessing the unrestricted user account
of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended
for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.20 As such,
the press, whether in quest of news reporting or social investigation, has
nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of
the Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or conceded,"
or "a token of love (as a ribbon) usually worn conspicuously."22 This meaning
given to the term "favor" embraces socially tolerated trysts. The law as written
would invite law enforcement agencies into the bedrooms of married couples or
consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section
of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up the cybercrime
law is that the element of "engaging in a business" is necessary to constitute
the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white
slave trade, and pornography for favor and consideration. This includes
interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual
activity—is not novel. Article 201 of the RPC punishes "obscene publications
and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution
or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other
consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery
and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace.
In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography already embraces the use of
"electronic, mechanical, digital, optical, magnetic or any other means." Notably,
no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet
the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-
year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off
his ideas on Twitter, anyone who replies to the tweet could be considered
aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will
be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of
commercial electronic communication with the use of computer system which
seeks to advertise, sell, or offer for sale products and services are prohibited
unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order to
induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to
one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech
enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State
cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of
expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of
a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are
not of confidential nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus Section
4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of
the Revised Penal Code, as amended, committed through a computer system
or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners
argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he published. Gross
or even extreme negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public
figure. Society’s interest and the maintenance of good government demand a
full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
₱6,000.00.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence (malice
in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter charged
as libelous is true, and, moreover, that it was published with good motives and
for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of the imputation made by him,
he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be crafted
with care to ensure that they do not stifle freedom of expression.48Indeed, the
ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may
be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime
since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation
constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings with it
certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
reader’s reaction to defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to
Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person
who willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully
attempts to commit any of the offenses enumerated in this Act shall be
held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable
any person who willfully abets or aids in the commission or attempts to commit
any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the freedom
of expression of "netizens," the multitude that avail themselves of the services
of the internet. He points out that existing laws and jurisprudence sufficiently
delineate the meaning of "aiding or abetting" a crime as to protect the innocent.
The Solicitor General argues that plain, ordinary, and common usage is at
times sufficient to guide law enforcement agencies in enforcing the law.51 The
legislature is not required to define every single word contained in the laws
they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest,52 smuggling merchandise into the country,53 or interfering in the peaceful
picketing of laborers,54 his action is essentially physical and so is susceptible to
easy assessment as criminal in character. These forms of aiding or abetting
lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line
of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings
online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users.55 Based on a recent survey, the Philippines ranks 6th in the top
10 most engaged countries for social networking.56 Social networking sites
build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book of
who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can be made visible to
anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it
visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of
up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form
of text, pictures, links, short videos, or other media—on the internet. Instead of
friends, a Twitter user has "Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and "Following," those whom
this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just reposting or republishing another
person’s tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to
the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of Maria’s
friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Maria’s original post is then multiplied by her friends and the latter’s
friends, and down the line to friends of friends almost ad infinitum. Nena, who
is a stranger to both Maria and Linda, comes across this blog, finds it
interesting and so shares the link to this apparently defamatory blog on her
Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s
original tweet and posts this on her Facebook account. Immediately, Pamela’s
Facebook Friends start Liking and making Comments on the assailed posting.
A lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand is a thief!," he could certainly
be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that
could not be libel since he did not author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would that be libel? No, for he
merely expresses agreement with the statement on the poster. He still is not its
author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking
site. Would a reader and his Friends or Followers, availing themselves of any
of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square
peg in a round hole when applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this
new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age;
and (2) the knowing use of an interactive computer service to send to a specific
person or persons under 18 years of age or to display in a manner available to
a person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA is
a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to the
opprobrium and stigma of a criminal conviction, the CDA threatens violators
with penalties including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of
discriminatory enforcement of vague regulations, poses greater U.S. Const.
amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents
a great threat of censoring speech that, in fact, falls outside the statute's scope.
Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not
be overly broad. The CDA’s burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click
of the mouse. Scurrilous statements can spread and travel fast across the
globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from
mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all liberties. Penal laws
should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms
"aiding or abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and
other messages.64 Hence, Section 5 of the cybercrime law that punishes
"aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability
of the overbreadth and vagueness doctrines to penal statutes as appropriate
only insofar as these doctrines are used to mount ‘facial’ challenges to penal
statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against
third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not
know whether his speech constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use
it. In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizen’s comment
aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats his
wife and children," then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations
that society values. Allowed to cascade in the internet, it will destroy
relationships and, under certain circumstances, will generate enmity and
tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of
transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child
pornography that the Cybercrimes law lacks—the exemption of a provider or
notably a plain user of interactive computer service from civil liability for child
pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily taken
in good faith to restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user
aiding the distribution of this communication? The legislature needs to address
this clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious chilling
effect on the freedom of expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not
punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other
countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of
these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that is
necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and passwords of others but fail
to use these because the system supervisor is alerted.72 If Section 5 that
punishes any person who willfully attempts to commit this specific offense is
not upheld, the owner of the username and password could not file a complaint
against him for attempted hacking. But this is not right. The hacker should not
be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover
the innocent.73 While this may be true with respect to cybercrimes that tend to
sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section
4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty
through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as
amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if
each crime involves some important act which is not an essential element of
the other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double
jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of child pornography in
fact already covers the use of "electronic, mechanical, digital, optical, magnetic
or any other means." Thus, charging the offender under both Section 4(c)(2)
and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand
pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure,
the penalty of reclusion temporal or a fine of at least Five hundred thousand
pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through a computer
system.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5
shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and magistrates
can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or
electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the
solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect
or record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need
not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that
they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally considered
private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn.80 In assessing
regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime
law for there is a need to put order to the tremendous activities in cyberspace
for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic
data is a part, aims to provide law enforcement authorities with the power they
need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires
signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified
communications."83 And this is precisely what Section 12 does. It empowers
law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it
has been committed, adequate for fighting cybercrimes and, therefore, real-
time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their
computers or laptops from day to day. In this digital age, the wicked can
commit cybercrimes from virtually anywhere: from internet cafés, from kindred
places that provide free internet services, and from unregistered mobile
internet connectors. Criminals using cellphones under pre-paid arrangements
and with unregistered SIM cards do not have listed addresses and can neither
be located nor identified. There are many ways the cyber criminals can quickly
erase their tracks. Those who peddle child pornography could use relays of
computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and
a subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the people’s right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may
not intrude, and that there exists an independent constitutional right of privacy.
Such right to be left alone has been regarded as the beginning of all
freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the
interest in avoiding disclosure of personal matters. It is the latter right—the right
to informational privacy—that those who oppose government collection or
recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners’ challenge to Section 12
applies to all information and communications technology (ICT) users, meaning
the large segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of privacy is to
be measured from the general public’s point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient
ICT user. For example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the message sent. It
is this information that creates the traffic data. Transmitting communications is
akin to putting a letter in an envelope properly addressed, sealing it closed, and
sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the
envelope.
Computer data—messages of all kinds—travel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers
where the packet originated, what kind of data is in the packet (SMS, voice call,
video, internet chat messages, email, online browsing data, etc.), where the
packet is going, and how the packet fits together with other packets.93 The
difference is that traffic data sent through the internet at times across the ocean
do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The
packets travel from one computer system to another where their contents are
pieced back together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another through his cellphone, the
service provider’s communication’s system will put his voice message into
packets and send them to the other person’s cellphone where they are refitted
together and heard. The latter’s spoken reply is sent to the caller in the same
way. To be connected by the service provider, the sender reveals his cellphone
number to the service provider when he puts his call through. He also reveals
the cellphone number to the person he calls. The other ways of communicating
electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the ‘70s must realize that
they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes
them out of the private sphere, making the expectation to privacy in regard to
them an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together, and
analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a person’s close associations, religious views,
political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters
protected by the right to privacy. But has the procedure that Section 12 of the
law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect
or record by technical or electronic means traffic data in real-time. Petitioners
point out that the phrase "due cause" has no precedent in law or jurisprudence
and that whether there is due cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that Congress is not required to
define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint
at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning
since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will
be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping
and lacks restraint. While it says that traffic data collection should not disclose
identities or content data, such restraint is but an illusion. Admittedly, nothing
can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains.
This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation at
all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that
would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out, the
thing to be searched stands to be removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides
minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must
be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of
the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines
however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces
of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and definiteness as
to ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
subscriber information relating to communication services provided by a
service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored
by a service provider is used as evidence in a case, the mere furnishing to
such service provider of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to preserve the computer data until
the termination of the case.
The service provider ordered to preserve computer data shall keep confidential
the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers
to keep traffic data and subscriber information relating to communication
services for at least six months from the date of the transaction and those
relating to content data for at least six months from receipt of the order for their
preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the
same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners’ objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued
court warrant, a function usually lodged in the hands of law enforcers to enable
them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a
search and seizure warrant is properly issued, the law enforcement authorities
shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the
measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete
the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but
merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service provider’s
storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the user’s right against deprivation of
property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider for
a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are
protected from unreasonable searches and seizures, whether while stored in
their personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further, it
states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search
warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But
for an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all
rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19,
however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down Section 19 for being violative
of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an
order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable
or valid.
But since the non-compliance would be punished as a violation of Presidential
Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the
offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference
to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to
the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers
and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a computer
emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it
gave the Cybercrime Investigation and Coordinating Center (CICC) the power
to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second
test mandates adequate guidelines or limitations in the law to determine the
boundaries of the delegate’s authority and prevent the delegation from running
riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of
the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard.106 Hence, Sections 24 and
26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data
in real-time; and
c. Section 19 of the same Act that authorizes the Department of
Justice to restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system
without right;
b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain
name over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition
of sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes
defined under the Revised Penal Code are committed with the use of
information and communications technologies;
 h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require
service providers to preserve traffic data and subscriber information
as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a
court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to
cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and
Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post; but
VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only in
relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both
the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against double jeopardy; as well
as
2. Child pornography committed online as to which, charging the offender
under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775
or the Anti-Child Pornography Act of 2009 also constitutes a violation of
the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA
WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE,
BAY AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN,
ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO,
CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR,
YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF
DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN
MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT
OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD
OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND
EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY
AS ALTER EGO OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.;
AND THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E.
DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON.
FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT (DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE
AND REV. JOSE L. GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE,
REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.;
THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY
SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE,
REPRESENTED BY SECRETARY CESAR V. PURISIMA; AND THE
BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST
VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA
NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING
AUTHORITY (CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS
PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF
THE PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA
PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION
(DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF
THE ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF
THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND
HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC),
REPRESENTED BY DANTE L. JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B.
ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
 DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of
the Disbursement Acceleration Program(DAP), National Budget Circular (NBC)
No. 541, and related issuances of the Department of Budget and Management
(DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987
Constitution, a provision of the fundamental law that firmly ordains that "[n]o
money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." The tenor and context of the challenges posed by
the petitioners against the DAP indicate that the DAP contravened this
provision by allowing the Executive to allocate public money pooled from
programmed and unprogrammed funds of its various agencies in the guise of
the President exercising his constitutional authority under Section 25(5) of the
1987 Constitution to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch of the Government. But
the challenges are further complicated by the interjection of allegations of
transfer of funds to agencies or offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators, including
himself, had been allotted an additional ₱50 Million each as "incentive" for
voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM
issued a public statement entitled Abad: Releases to Senators Part of
Spending Acceleration Program,1 explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to ramp
up spending to accelerate economic expansion. He clarified that the funds had
been released to the Senators based on their letters of request for funding; and
that it was not the first time that releases from the DAP had been made
because the DAP had already been instituted in 2011 to ramp up spending
after sluggish disbursements had caused the growth of the gross domestic
product (GDP) to slow down. He explained that the funds under the DAP were
usually taken from (1) unreleased appropriations under Personnel
Services;2 (2) unprogrammed funds; (3) carry-over appropriations unreleased
from the previous year; and (4) budgets for slow-moving items or projects that
had been realigned to support faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1) the
pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year, unreleased
appropriations of slow-moving projects and discontinued projects per zero
based budgeting findings;5 and (2) the withdrawal of unobligated allotments
also for slow-moving programs and projects that had been earlier released to
the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of
savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution, which
granted to the President the authority to augment an item for his office in the
general appropriations law; (2) Section 49 (Authority to Use Savings for Certain
Purposes) and Section 38 (Suspension of Expenditure Appropriations),
Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of
1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and
2013, particularly their provisions on the (a) use of savings; (b) meanings of
savings and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal
bases the special provisions on unprogrammed fund contained in the GAAs of
2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
brought the DAP to the consciousness of the Nation for the first time, and
made this present controversy inevitable. That the issues against the DAP
came at a time when the Nation was still seething in anger over Congressional
pork barrel – "an appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a representative’s
district"7 – excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other, as follows: G.R. No.
209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7,
2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No. 209164
(PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16,
2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442
(Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on November6,
2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention
NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No.
541, which was issued to implement the DAP, directed the withdrawal of
unobligated allotments as of June 30, 2012 of government agencies and
offices with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the
Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues
raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to
assail the constitutionality and validity of the Disbursement Acceleration
Program (DAP), National Budget Circular (NBC) No. 541, and all other
executive issuances allegedly implementing the DAP. Subsumed in this issue
are whether there is a controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution,
which provides: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated
allotments withdrawn from government agencies as "savings" as the
term is used in Sec. 25(5), in relation to the provisions of the GAAs of
2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs
not provided in the GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the
GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public accountability
enshrined in the 1987 Constitution considering that it authorizes the release of
funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541, and
all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed
funds in order to support its argument regarding the President’s power to
spend. During the oral arguments, the propriety of releasing unprogrammed
funds to support projects under the DAP was considerably discussed. The
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica)
dwelled on unprogrammed funds in their respective memoranda. Hence, an
additional issue for the oral arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in
accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec.
Abad to submit a list of savings brought under the DAP that had been sourced
from (a) completed programs; (b) discontinued or abandoned programs; (c)
unpaid appropriations for compensation; (d) a certified copy of the President’s
directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars
or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25,
2012 (Omnibus Authority to Consolidate Savings/Unutilized Balances and
their Realignment);10
(2) Circulars and orders, which the respondents identified as related to the
DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of
Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the
Release of Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational
Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of
Funds for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004
(Budgetary Treatment of Commitments/Obligations of the National
Government);
 f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013
(Revised Guidelines on the Submission of Quarterly Accountability
Reports on Appropriations, Allotments, Obligations and
Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified
Fund Release System in the Government).
(3) A breakdown of the sources of savings, including savings from
discontinued projects and unpaid appropriations for compensation from
2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on
January 21, 2014 directing the respondents to submit the documents not yet
submitted in compliance with the directives of the Court or its Members,
submitted several evidence packets to aid the Court in understanding the
factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the
DBM through Sec. Abad, inclusive of annexes, listing in detail the 116
DAP identified projects approved and duly signed by the President, as
follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011
Proposed Disbursement Acceleration Program (Projects and
Sources of Funds);
b. Memorandum for the President dated December 12, 2011
(Omnibus Authority to Consolidate Savings/Unutilized Balances and
its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment);
d. Memorandum for the President dated September 4, 2012
(Release of funds for other priority projects and expenditures of the
Government);
e. Memorandum for the President dated December 19, 2012
(Proposed Priority Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment to Fund the Quarterly Disbursement Acceleration
Program); and
g. Memorandum for the President dated September 25, 2013
(Funding for the Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP,
with their corresponding Special Allotment Release Orders (SAROs) and
appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12
projects under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the
Annual Financial Report (AFR) of the Commission on Audit for 2011 and
2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of
Transportation and Communications(DOTC) Sec. Joseph Abaya
addressed to Sec. Abad recommending the withdrawal of funds from his
agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual
presentation for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence
Packet,18 which listed the sources of funds brought under the DAP, the uses of
such funds per project or activity pursuant to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further
compliance with the Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the
effect that the revenue collections exceeded the original revenue targets for the
years 2011, 2012 and 2013, including collections arising from sources not
considered in the original revenue targets, which certifications were required
for the release of the unprogrammed funds as provided in Special Provision
No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013
GAAs; and (2) A report on releases of savings of the Executive Department for
the use of the Constitutional Commissions and other branches of the
Government, as well as the fund releases to the Senate and the Commission
on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include
applications for the issuance of writs of preliminary prohibitory injunction or
temporary restraining orders. More specifically, the nature of the petitions is
individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus
G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties;19 that the
petitioners lacked legal standing to sue because no allegations were made to
the effect that they had suffered any injury as a result of the adoption of the
DAP and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue considering
that the adoption and implementation of the DAP and the issuance of NBC No.
541 were not in the exercise of the taxing or spending power of
Congress;20 and that even if the petitioners had suffered injury, there were
plain, speedy and adequate remedies in the ordinary course of law available to
them, like assailing the regularity of the DAP and related issuances before the
Commission on Audit (COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition
are not proper actions for directly assailing the constitutionality and validity of
the DAP, NBC No. 541, and the other executive issuances implementing the
DAP.22
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
questioning the validity of any law unless there is an actual case or controversy
the resolution of which requires the determination of the constitutional question;
that the jurisdiction of the Court is largely appellate; that for a court of law to
pass upon the constitutionality of a law or any act of the Government when
there is no case or controversy is for that court to set itself up as a reviewer of
the acts of Congress and of the President in violation of the principle of
separation of powers; and that, in the absence of a pending case or
controversy involving the DAP and NBC No. 541, any decision herein could
amount to a mere advisory opinion that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations
that the petitioners can question either in the trial courts or in the COA; that if
the petitioners are dissatisfied with the ruling either of the trial courts or of the
COA, they can appeal the decision of the trial courts by petition for review on
certiorari, or assail the decision or final order of the COA by special civil action
for certiorari under Rule 64 of the Rules of Court.24
The respondents’ arguments and submissions on the procedural issue are
bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower
courts as may be established by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court, and that court, upon its
creation, becomes by operation of the Constitution one of the repositories of
judicial power.25 However, only the Court is a constitutionally created court, the
rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable" but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." It has thereby
expanded the concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the
1987 Constitution were laid out during the deliberations of the 1986
Constitutional Commission by Commissioner Roberto R. Concepcion (a former
Chief Justice of the Philippines) in his sponsorship of the proposed provisions
on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judicial party. In a decided case, a husband complained that his
wife was unwilling to perform her duties as a wife. The Court said: "We can tell
your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory
to human dignity." This is why the first part of the second paragraph of Section
1 provides that: Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
also, another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question. (Bold emphasis
supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion
clarified the scope of judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of
courts of justice to settle actual controversies…" The term "actual
controversies" according to the Commissioner should refer to questions which
are political in nature and, therefore, the courts should not refuse to decide
those political questions. But do I understand it right that this is restrictive or
only an example? I know there are cases which are not actual yet the court can
assume jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant
declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower courts
as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of
judicial review and the great responsibility of the Judiciary in maintaining the
allocation of powers among the three great branches of Government. Speaking
for the Court in Angara v. Electoral Commission,28 Justice Jose P. Laurel
intoned:
x x x In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between
the several department and among the integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other department; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of jurisdiction.
These are the special civil actions for certiorari and prohibition, and both are
governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but
the remedy is expressly applicable only to the judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system
are aptly explained in Delos Santos v. Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of
certiorari was issued out of Chancery, or the King’s Bench, commanding
agents or officers of the inferior courts to return the record of a cause pending
before them, so as to give the party more sure and speedy justice, for the writ
would enable the superior court to determine from an inspection of the record
whether the inferior court’s judgment was rendered without authority. The
errors were of such a nature that, if allowed to stand, they would result in a
substantial injury to the petitioner to whom no other remedy was available. If
the inferior court acted without authority, the record was then revised and
corrected in matters of law. The writ of certiorari was limited to cases in which
the inferior court was said to be exceeding its jurisdiction or was not
proceeding according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the
same as it has been in the common law. In this jurisdiction, however, the
exercise of the power to issue the writ of certiorari is largely regulated by laying
down the instances or situations in the Rules of Court in which a superior court
may issue the writ of certiorari to an inferior court or officer. Section 1, Rule 65
of the Rules of Court compellingly provides the requirements for that purpose,
viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction,
which includes the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant
the issuance of the writ. The abuse of discretion must be grave, which means
either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused
to perform the duty enjoined or to act in contemplation of law, such as when
such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction,
certiorari is to be distinguished from prohibition by the fact that it is a corrective
remedy used for the re-examination of some action of an inferior tribunal, and
is directed to the cause or proceeding in the lower court and not to the court
itself, while prohibition is a preventative remedy issuing to restrain future
action, and is directed to the court itself.32 The Court expounded on the nature
and function of the writ of prohibition in Holy Spirit Homeowners Association,
Inc. v. Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued
in the exercise of a quasi-legislative function. Prohibition is an extraordinary
writ directed against any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said proceedings are without or
in excess of said entity’s or person’s jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law. Prohibition lies against
judicial or ministerial functions, but not against legislative or quasi-legislative
functions. Generally, the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration of
justice in orderly channels. Prohibition is the proper remedy to afford relief
against usurpation of jurisdiction or power by an inferior court, or when, in the
exercise of jurisdiction in handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by the law, or where
there is no adequate remedy available in the ordinary course of law by which
such relief can be obtained. Where the principal relief sought is to invalidate an
IRR, petitioners’ remedy is an ordinary action for its nullification, an action
which properly falls under the jurisdiction of the Regional Trial Court. In any
case, petitioners’ allegation that "respondents are performing or threatening to
perform functions without or in excess of their jurisdiction" may appropriately be
enjoined by the trial court through a writ of injunction or a temporary restraining
order.
With respect to the Court, however, the remedies of certiorari and prohibition
are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only by
a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized
by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and
undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court is not
at all precluded from making the inquiry provided the challenge was properly
brought by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the duty and the
obligation of determining, in appropriate cases, the validity of any assailed
legislative or executive action. This entrustment is consistent with the
republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the
Court has become more alert to discharge its constitutional duty. We will not
now refrain from exercising our expanded judicial power in order to review and
determine, with authority, the limitations on the Chief Executive’s spending
power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following,
namely: (1) there must bean actual case or justiciable controversy before the
Court; (2) the question before the Court must be ripe for adjudication; (3) the
person challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and must be the very
litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise
of judicial power by the Court.37 An actual case or controversy, in the words of
Belgica v. Executive Secretary Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. In other words, "[t]here must be a
contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence." Related to the requirement of an actual case
or controversy is the requirement of "ripeness," meaning that the questions
raised for constitutional scrutiny are already ripe for adjudication. "A question is
ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it. It is a prerequisite that something had
then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action."
"Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot
questions."
An actual and justiciable controversy exists in these consolidated cases. The
incompatibility of the perspectives of the parties on the constitutionality of the
DAP and its relevant issuances satisfy the requirement for a conflict between
legal rights. The issues being raised herein meet the requisite ripeness
considering that the challenged executive acts were already being
implemented by the DBM, and there are averments by the petitioners that such
implementation was repugnant to the letter and spirit of the Constitution.
Moreover, the implementation of the DAP entailed the allocation and
expenditure of huge sums of public funds. The fact that public funds have been
allocated, disbursed or utilized by reason or on account of such challenged
executive acts gave rise, therefore, to an actual controversy that is ripe for
adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile discontinued
because it had fully served its purpose, saying: "In conclusion, Your Honors,
may I inform the Court that because the DAP has already fully served its
purpose, the Administration’s economic managers have recommended its
termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a
program, and urged that its termination had already mooted the challenges to
the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases
brought to challenge its constitutionality. Any constitutional challenge should no
longer be at the level of the program, which is now extinct, but at the level of its
prior applications or the specific disbursements under the now defunct policy.
We challenge the petitioners to pick and choose which among the 116 DAP
projects they wish to nullify, the full details we will have provided by February 5.
We urge this Court to be cautious in limiting the constitutional authority of the
President and the Legislature to respond to the dynamic needs of the country
and the evolving demands of governance, lest we end up straight jacketing our
elected representatives in ways not consistent with our constitutional structure
and democratic principles.40
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was a
supervening event that effectively mooted these consolidated cases. Verily, the
Court had in the past exercised its power of judicial review despite the cases
being rendered moot and academic by supervening events, like: (1) when there
was a grave violation of the Constitution; (2) when the case involved a situation
of exceptional character and was of paramount public interest; (3) when the
constitutional issue raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) when the case was capable of
repetition yet evading review.42
Assuming that the petitioners’ several submissions against the DAP were
ultimately sustained by the Court here, these cases would definitely come
under all the exceptions. Hence, the Court should not abstain from exercising
its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a
right of appearance in a court of justice on a given question."43 The concept of
legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is required, therefore,
that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."
Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the
direct injury test for determining whether a petitioner in a public action had
locus standi. There, the Court held that the person who would assail the validity
of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers’
Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix,
and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized
the approach when the cases had "transcendental importance." Some notable
controversies whose petitioners did not pass the direct injury test were allowed
to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided
to resolve the issues raised by the petition due to their "far reaching
implications," even if the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been adopted in several
notable cases, permitting ordinary citizens, legislators, and civic organizations
to bring their suits involving the constitutionality or validity of laws, regulations,
and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against
as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public
right.
Quite often, as here, the petitioner in a public action sues as a citizen or
taxpayer to gain locus standi. That is not surprising, for even if the issue may
appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. Macapagal-
Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to
maintain an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have
invoked their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further
dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political
branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its
legal standing to bring cases upon constitutional issues.48 Luna, the petitioner
in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the
petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule of
law and of paramount importance of the question in this action, not to mention
its civic duty as the official association of all lawyers in this country."49
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi on
each of them.
In addition, considering that the issues center on the extent of the power of the
Chief Executive to disburse and allocate public funds, whether appropriated by
Congress or not, these cases pose issues that are of transcendental
importance to the entire Nation, the petitioners included. As such, the
determination of such important issues call for the Court’s exercise of its broad
and wise discretion "to waive the requirement and so remove the impediment
to its addressing and resolving the serious constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in
properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had
derived from the Latin word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined
"budget" as the financial program of the National Government for a designated
fiscal year, consisting of the statements of estimated receipts and expenditures
for the fiscal year for which it was intended to be effective based on the results
of operations during the preceding fiscal years. The term was given a different
meaning under Republic Act No. 992 (Revised Budget Act) by describing the
budget as the delineation of the services and products, or benefits that would
accrue to the public together with the estimated unit cost of each type of
service, product or benefit.52 For a forthright definition, budget should simply be
identified as the financial plan of the Government,53 or "the master plan of
government."54
The concept of budgeting has not been the product of recent economies. In
reality, financing public goals and activities was an idea that existed from the
creation of the State.55 To protect the people, the territory and sovereignty of
the State, its government must perform vital functions that required public
expenditures. At the beginning, enormous public expenditures were spent for
war activities, preservation of peace and order, security, administration of
justice, religion, and supply of limited goods and services.56 In order to finance
those expenditures, the State raised revenues through taxes and
impositions.57 Thus, budgeting became necessary to allocate public revenues
for specific government functions.58 The State’s budgeting mechanism
eventually developed through the years with the growing functions of its
government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public
financial institutions. This is because of the country’s past as a colony
successively of Spain and the United States for a long period of time. Many
aspects of the country’s public fiscal administration, including its Budget
System, have been naturally patterned after the practices and experiences of
the western public financial institutions. At any rate, the Philippine Budget
System is presently guided by two principal objectives that are vital to the
development of a progressive democratic government, namely: (1) to carry on
all government activities under a comprehensive fiscal plan developed,
authorized and executed in accordance with the Constitution, prevailing
statutes and the principles of sound public management; and (2) to provide for
the periodic review and disclosure of the budgetary status of the Government
in such detail so that persons entrusted by law with the responsibility as well as
the enlightened citizenry can determine the adequacy of the budget actions
taken, authorized or proposed, as well as the true financial position of the
Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916. A Budget
Office was created within the Department of Finance by the Jones Law to
discharge the budgeting function, and was given the responsibility to assist in
the preparation of an executive budget for submission to the Philippine
Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the
enactment of laws and executive acts.61 EO No. 25, issued by President
Manuel L. Quezon on April 25, 1936, created the Budget Commission to serve
as the agency that carried out the President’s responsibility of preparing the
budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938
and established the Philippine budget process. The law also provided a line-
item budget as the framework of the Government’s budgeting system,63 with
emphasis on the observance of a "balanced budget" to tie up proposed
expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of
Republic Act (RA) No. 992,whereby Congress introduced performance-
budgeting to give importance to functions, projects and activities in terms of
expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on June
11, 1978. The latter decree converted the Budget Commission into the Ministry
of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM pursuant
to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget
Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget
Call by the DBM. The Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee (DBCC) as well as policy
guidelines and procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two kinds, namely:
(1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed
to all government-owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the various
departments and agencies to partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency Budget Proposals, which
proposals are then presented before a technical panel of the DBM in scheduled
budget hearings wherein the various departments and agencies are given the
opportunity to defend their budget proposals. DBM bureaus thereafter review
the Agency Budget Proposals and come up with recommendations for the
Executive Review Board, comprised by the DBM Secretary and the DBM’s
senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis-à-vis the priority
agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP)and a Budget of Expenditures and
Sources of Financing (BESF). The NEP provides the details of spending for
each department and agency by program, activity or project (PAP), and is
submitted in the form of a proposed GAA. The Details of Selected Programs
and Projects is the more detailed disaggregation of key PAPs in the NEP,
especially those in line with the National Government’s development plan. The
Staffing Summary provides the staffing complement of each department and
agency, including the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or reprioritization. Once the
NEP and the BESF are approved by the President and the Cabinet, the DBM purposes in the form of money and/or materials, and do not require any
prepares the budget documents for submission to Congress. The budget monetary commitment on the part of the recipient);82 (4) extraordinary
documents consist of: (1) the President’s Budget Message, through which the income(i.e., repayment of loans and advances made by government
President explains the policy framework and budget priorities; (2) the BESF, corporations and local governments and the receipts and shares in income of
mandated by Section 22, Article VII of the Constitution,68 which contains the the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public
macroeconomic assumptions, public sector context, breakdown of the borrowings(i.e., proceeds of repayable obligations generally with interest from
expenditures and funding sources for the fiscal year and the two previous domestic and foreign creditors of the Government in general, including the
years; and (3) the NEP. National Government and its political subdivisions).84
Public or government expenditures are generally classified into two categories, More specifically, public revenues are classified as follows:85
specifically: (1) capital expenditures or outlays; and (2) current operating
expenditures. Capital expenditures are the expenses whose usefulness lasts General Income
for more than one year, and which add to the assets of the Government,
including investments in the capital of government-owned or controlled 1. Subsidy Income from National
1. Income Taxes
corporations and their subsidiaries.69 Current operating expenditures are the Government
2. Property Taxes
purchases of goods and services in current consumption the benefit of which 2. Subsidy from Central Office
does not extend beyond the fiscal year.70 The two components of current 3. Taxes on Goods and Services
expenditures are those for personal services (PS), and those for maintenance 3. Subsidy from Regional
and other operating expenses(MOOE). Office/Staff Bureaus 4. Taxes on International Trade and sit in the Bicameral Conference Committee for the purpose of discussing and
Transactions
Public expenditures are also broadly grouped according to their functions into: 4. Income from Government
(1) economic development expenditures (i.e., expenditures on agriculture and Services 5.
Other Taxes 6.Fines and Penalties-Tax
natural resources, transportation and communications, commerce and industry,
and other economic development efforts);71 (2) social services or social 5. Income from Government 7. Other Specific Income
development expenditures (i.e., government outlay on education, public health Business Operations
and medicare, labor and welfare and others);72 (3) general government or
6. Sales Revenue
general public services expenditures (i.e., expenditures for the general
government, legislative services, the administration of justice, and for pensions 7. Rent Income
and gratuities);73 (4) national defense expenditures (i.e., sub-divided into
national security expenditures and expenditures for the maintenance of peace 8. Insurance Income
and order);74 and (5) public debt.75
9. Dividend Income
Public expenditures may further be classified according to the nature of funds,
i.e., general fund, special fund or bond fund.76 10. Interest Income
11. Sale of Confiscated Goods and
On the other hand, public revenues complement public expenditures and cover
all income or receipts of the government treasury used to support government Properties
expenditures.77 12. Foreign Exchange (FOREX)
Classical economist Adam Smith categorized public revenues based on two Gains
principal sources, stating: "The revenue which must defray…the necessary
13. Miscellaneous Operating and
expenses of government may be drawn either, first from some fund which
Service Income
peculiarly belongs to the sovereign or commonwealth, and which is
independent of the revenue of the people, or, secondly, from the revenue of the 14. Fines and Penalties-Government
people."78 Adam Smith’s classification relied on the two aspects of the nature of Services and Business Operations
the State: first, the State as a juristic person with an artificial personality, and,
second, the State as a sovereign or entity possessing supreme power. Under 15. Income from Grants and
the first aspect, the State could hold property and engage in trade, thereby Donations
deriving what is called its quasi private income or revenues, and which
"peculiarly belonged to the sovereign." Under the second aspect, the State
could collect by imposing charges on the revenues of its subjects in the form of
c.2. Budget Legislation86
taxes.79
The Budget Legislation Phase covers the period commencing from the time
In the Philippines, public revenues are generally derived from the following
Congress receives the President’s Budget, which is inclusive of the NEPand
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance
the BESF, up to the President’s approval of the GAA. This phase is also known
government activities); 80 (2) capital revenues(i.e., proceeds from sales of as the Budget Authorization Phase, and involves the significant participation of
fixed capital assets or scrap thereof and public domain, and gains on such
the Legislative through its deliberations.
sales like sale of public lands, buildings and other structures, equipment, and
other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
Initially, the President’s Budget is assigned to the House of Representatives’
contributions and aids given to the Government for its operation on specific
Appropriations Committee on First Reading. The Appropriations Committee
and its various Sub-Committees schedule and conduct budget hearings to
examine the PAPs of the departments and agencies. Thereafter, the House of
Representatives drafts the General Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of
Representatives’ Appropriations Committee and Sub-Committees in plenary
session. As with other laws, the GAB is approved on Third Reading before the
House of Representatives’ version is transmitted to the Senate.88
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee
Specifichearings
Incomesimultaneously with the House of Representatives’ deliberations. The
Senate’s Finance Committee and its Sub-Committees may submit the
proposed amendments to the GAB to the plenary of the Senate only after the
House of Representatives has formally transmitted its version to the Senate.
The Senate version of the GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to
harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for
approval.
90 The President reviews the GAB, and prepares the Veto Message
Revenue
where budget items are subjected to direct veto,91 or are identified for
conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB
for the ensuing fiscal year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the GAB is
passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of
the budget. The Budget Execution Phase is primarily the function of the DBM,
which is tasked to perform the following procedures, namely: (1) to issue the
programs and guidelines for the release of funds; (2) to prepare an Allotment
and Cash Release Program; (3) to release allotments; and (4) to issue
disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the
DBM. Prior to this, the various departments and agencies are required to
submit Budget Execution Documents(BED) to outline their plans and
performance targets by laying down the physical and financial plan, the
monthly cash program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a
Cash Release Program (CRP).The ARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the monthly, quarterly and
annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by
the DBM. Allotments are lesser in scope than appropriations, in that the latter
embrace the general legislative authority to spend. Allotments may be released
in two forms – through a comprehensive Agency Budget Matrix (ABM),94 or,
individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur
obligations96 on behalf of the Government in order to implement their PAPs.
Obligations may be incurred in various ways, like hiring of personnel, entering
into contracts for the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a Administration would thereby accelerate government spending by: (1) realigned for priority Acceleration
disbursement authority so that cash may be allocated in payment of the streamlining the implementation process through the clustering of infrastructure programs that require Program
obligations. A cash or disbursement authority that is periodically issued is projects of the Department of Public Works and Highways (DPWH) and the immediate funding
referred to as a Notice of Cash Allocation (NCA),97 which issuance is based Department of Education (DepEd),and (2) front loading PPP-related
upon an agency’s submission of its Monthly Cash Program and other required projects107 due for implementation in the following year.108 FY 2011 482 Unreleased
documents. The NCA specifies the maximum amount of cash that can be Unreleased appropriations (slow
withdrawn from a government servicing bank for the period indicated. Apart Did the stimulus package work? Appropriations moving projects and
from the NCA, the DBM may issue a Non-Cash Availment Authority(NCAA) to programs for
The March 2012 report of the World Bank,109 released after the initial
authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC) for discontinuance)
implementation of the DAP, revealed that the DAP was partially successful.
departments with overseas operations to allow the use of income collected by The disbursements under the DAP contributed 1.3 percentage points to GDP FY 2010 12,336 Supported by the GFI Approve and
their foreign posts for their operating requirements. growth by the fourth quarter of 2011.110 The continued implementation of the Unprogrammed Dividends authorize its use
Actual disbursement or spending of government funds terminates the Budget DAP strengthened growth by 11.8% year on year while infrastructure spending Fund for the 2011
Execution Phase and is usually accomplished through the Modified rebounded from a 29% contraction to a 34% growth as of September 2013.111 Disbursement
Disbursement Scheme under which disbursements chargeable against the Acceleration
The DAP thus proved to be a demonstration that expenditure was a policy
National Treasury are coursed through the government servicing banks. Program
instrument that the Government could use to direct the economies towards
c.4. Accountability98 growth and development.112 The Government, by spending on public FY 2010 21,544 Unreleased With prior
infrastructure, would signify its commitment of ensuring profitability for Carryover appropriations (slow approval from
Accountability is a significant phase of the budget cycle because it ensures that prospective investors.113 The PAPs funded under the DAP were chosen for this Appropriation moving projects and the President in
the government funds have been effectively and efficiently utilized to achieve reason based on their: (1) multiplier impact on the economy and infrastructure programs for November 2010
the State’s socio-economic goals. It also allows the DBM to assess the development; (2) beneficial effect on the poor; and (3) translation into discontinuance) and to declare as
performance of agencies during the fiscal year for the purpose of implementing disbursements.114 savings from Zero- savings and with
reforms and establishing new policies. based Budgeting authority to use
b. History of the implementation of
An agency’s accountability may be examined and evaluated through (1) the DAP, and sources of funds Initiative for priority
performance targets and outcomes; (2) budget accountability reports; (3) under the DAP projects
review of agency performance; and (4) audit conducted by the Commission on FY 2011 7,748 FY 2011 Agency For information
Audit(COA). How the Administration’s economic managers conceptualized and developed
the DAP, and finally presented it to the President remains unknown because Budget Budget items that can
2. the relevant documents appear to be scarce. items for be realigned within the
realignment agency to fund new
Nature of the DAP as a fiscal plan The earliest available document relating to the genesis of the DAP was the fast
memorandum of October 12,2011 from Sec. Abad seeking the approval of the disbursing projects
a. DAP was a program designed to President to implement the proposed DAP. The memorandum, which DPWH-3.981 Billion
promote economic growth contained a list of the funding sources for ₱72.11 billion and of the proposed DA – 2.497 Billion
Policy is always a part of every budget and fiscal decision of any priority projects to be funded,115 reads: DOT – 1.000 Billion
Administration.99 The national budget the Executive prepares and presents to DepEd – 270 Million
MEMORANDUM FOR THE PRESIDENT
Congress represents the Administration’s "blueprint for public policy" and TOTAL 72.110
reflects the Government’s goals and strategies.100 As such, the national budget xxxx
becomes a tangible representation of the programs of the Government in B. Projects in the Disbursement Acceleration Program
monetary terms, specifying therein the PAPs and services for which specific SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION
amounts of public funds are proposed and allocated.101 Embodied in every PROGRAM (PROJECTS AND SOURCES OF FUNDS) (Descriptions of projects attached as Annex A)
national budget is government spending.102 DATE: OCTOBER 12, 2011 GOCCs and GFIs
When he assumed office in the middle of 2010, President Aquino made Mr. President, this is to formally confirm your approval of the Disbursement Agency/Project Allotment
efficiency and transparency in government spending a significant focus of his Acceleration Program totaling ₱72.11 billion. We are already working with all (SARO and NCA Release) (in Million Php)
Administration. Yet, although such focus resulted in an improved fiscal deficit of the agencies concerned for the immediate execution of the projects therein.
0.5% in the gross domestic product (GDP) from January to July of 2011, it also 1. LRTA: Rehabilitation of LRT 1 and 2 1,868
unfortunately decelerated government project implementation and payment A. Fund Sources for the Acceleration Program
schedules.103 The World Bank observed that the Philippines’ economic growth 2. NHA: 11,050
could be reduced, and potential growth could be weakened should the Fund Sources Amount Description Action
Government continue with its underspending and fail to address the large (In million Requested a. Resettlement of North Triangle residents to 450
deficiencies in infrastructure.104 The economic situation prevailing in the middle Php) Camarin A7
of 2011 thus paved the way for the development and implementation of the b. Housing for BFP/BJMP 500
FY 2011 30,000 Unreleased Personnel Declare as 10,000
DAP as a stimulus package intended to fast-track public spending and to push c. On-site development for families living
Unreleased Services (PS) savings and
economic growth by investing on high-impact budgetary PAPs to be funded along dangerous
Personal appropriations which approve/ 100
from the "savings" generated during the year as well as from unprogrammed d. Relocation sites for informal settlers
Services (PS) will lapse at the end of authorize its use
funds.105 In that respect, the DAP was the product of "plain executive policy- along Iloilo River and its tributaries
Appropriations FY 2011 but may be for the 2011
making" to stimulate the economy by way of accelerated spending.106The pooled as savings and Disbursement
3. PHIL. HEART CENTER: Upgrading of 357 16. DA: 2,959 2,223 26. DepEd/ERDT/DOST: Thin
ageing physical plant and medical equipment a. Irrigation, FMRs and Client Cloud Computing
Integrated Community Based Project 270 270
4. CREDIT INFO CORP: Establishment of 75 Multi-Species
centralized credit information system Hatchery and Aquasilvi 1,629 1,629 27. DOH: Hiring of nurses and
Farming midwives 294 294
5. PIDS: purchase of land to relocate the PIDS 100
office and building construction b. Mindanao Rural 919 183 28. TESDA: Training Program in
Development Project partnership with BPO industry
6. HGC: Equity infusion for credit insurance 400 and other sectors 1,100 1,100
and mortgage guaranty operations of HGC c. NIA Agno River Integrated
Irrigation Project 411 411 29. DILG: Performance Challenge
7. PHIC: Obligations incurred (premium 1,496 Fund (People Empowered
subsidy for indigent families) in January-June 17. DAR: 1,293 1,293
a. Agrarian Reform Community Driven
2010, booked for payment in Jul[y] – Dec Development with DSWD and
2010. The delay in payment is due to the Communities Project 2 1,293 132
b. Landowners Compensation 5,432 NAPC) 250 50
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to 18. DBM: Conduct of National 30. ARMM: Comprehensive Peace
pay the full amount. Survey of and Development Intervention 8,592 8,592
8. Philpost: Purchase of foreclosed property. 644 Farmers/Fisherfolks/Ips 625 625 31. DOTC-MRT: Purchase of
Payment of Mandatory Obligations, (GSIS, 19. DOJ: Operating requirements additional MRT cars 4,500 -
PhilHealth, ECC), Franking Privilege of 50 investigation agents and 32. LGU Support Fund 6,500 6,500
9. BSP: First equity infusion out of Php 40B 10,000 15 state attorneys 11 11
capitalization under the BSP Law 33. Various Other Local Projects 6,500 6,500
20. DOT: Preservation of the Cine
10. PCMC: Capital and Equipment Renovation 280 Corregidor Complex 25 25 34. Development Assistance to the
Province of Quezon 750 750
11. LCOP: 105 21. OPAPP: Activities for Peace
a. Pediatric Pulmonary Program Process (PAMANA- Project TOTAL 45,165 44,000
b. Bio-regenerative Technology Program 35 details: budget breakdown,
implementation plan, and C. Summary
(Stem-Cell Research – subject to legal 70
review and presentation) conditions on fund release
Fund
attached as Annex B) 1,819 1,819
Sources Allotments Cash
12. TIDCORP: NG Equity infusion 570 Identified for Requirements for
22. DOST 425 425
TOTAL 26,945 a. Establishment of National for Release Release in FY
Meterological and Climate Approval 2011
Center 275 275 (In
b. Enhancement of Doppler Million
NGAs/LGUs Php)
Radar Network for National
Agency/Project Allotment Weather Watch, Accurate
Total 72,110 72,110 70,895
(SARO) Cash Forecasting and Flood Early
(In Million Requirement Warning 190 190 GOCCs 26,895 26,895
Php) (NCA)
23. DOF-BOC: To settle the NGAs/LGUs 45,165 44,000
13. DOF-BIR: NPSTAR principal obligations with
centralization of data PDIC consistent with the For His Excellency’s Consideration
processing and others (To be agreement with the CISS and
SGS 2,800 2,800 (Sgd.) FLORENCIO B. ABAD
synchronized with GFMIS
activities) 758 758 [/] APPROVED
24. OEO-FDCP: Establishment of
14. COA: IT infrastructure the National Film Archive and [ ] DISAPPROVED
program and hiring of local cinematheques, and other
additional litigational experts 144 144 local activities 20 20 (Sgd.) H.E. BENIGNO S. AQUINO, III

25. DPWH: Various infrastructure OCT 12, 2011

15. DND-PAF: On Base Housing
Facilities and Communication projects 5,500 5,500
The memorandum of October 12, 2011 was followed by another memorandum
Equipment 30 30 for the President dated December 12, 2011116 requesting omnibus authority to
consolidate the savings and unutilized balances for fiscal year 2011. Pertinent
portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and
its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate
savings/unutilized balances in FY 2011 corresponding to completed or
discontinued projects which may be pooled to fund additional projects or
expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even
if their implementation carries over to 2012 without necessarily impacting on
our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the same,
have identified savings out of the 2011 General Appropriations Act. Said
savings correspond to completed or discontinued projects under certain
departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated
during preparation of the budget;
1.2 to augment additional requirements of on-going priority projects;
and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g.,
PDAF, Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class
allocation as a result of on-going priority projects and implementation
of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for
omnibus authority to pool savings/unutilized balances in FY 2010 last
November 25, 2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM
shall secure the corresponding approval/confirmation of the President.
Furthermore, it is assured that the proposed realignments shall be within
the authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may
be sourced from the said pooled appropriations in FY 2010 that will expire
on December 31, 2011 and appropriations in FY 2011 that may be
declared as savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is
proposed to be spent for the projects that we have identified to be
immediate actual disbursements considering that this same fund
source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded
from the FY 2011 Unreleased Appropriations, most of these are the
same projects for which the DBM is directed by the Office of the
President, thru the Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that
have been chosen given their multiplier impact on economy and
infrastructure development, their beneficial effect on the poor, and their
translation into disbursements. Please note that we have classified the list
of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request for the President’s
approval for the following:
8.1 Grant of omnibus authority to consolidate FY 2011
savings/unutilized balances and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund
proposed projects were contained in various other memoranda from Sec. Abad
dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119 May 20,
2013,120 and September 25, 2013.121 The President apparently approved all the
requests, withholding approval only of the proposed projects contained in the
June 25, 2012 memorandum, as borne out by his marginal note therein to the
effect that the proposed projects should still be "subject to further
discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC
No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012),123 reproduced herein
as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and
other Offices of the National Government, Budget and Planning Officers;
Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code
of 1987), periodically reviews and evaluates the departments/agencies’
efficiency and effectiveness in utilizing budgeted funds for the delivery of
services and production of goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the operational
efficiency of the government, the President is authorized to suspend or stop
further use of funds allotted for any agency or expenditure authorized in the
General Appropriations Act. Withdrawal and pooling of unutilized allotment
releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its
spending targets. In order to accelerate spending and sustain the fiscal targets
during the year, expenditure measures have to be implemented to optimize the
utilization of available resources.
Departments/agencies have registered low spending levels, in terms of
obligations and disbursements per initial review of their 2012 performance. To
enhance agencies’ performance, the DBM conducts continuous consultation
meetings and/or send call-up letters, requesting them to identify slow-moving
programs/projects and the factors/issues affecting their performance (both
pertaining to internal systems and those which are outside the agencies’
spheres of control). Also, they are asked to formulate strategies and
improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued
to post low obligation levels as of end of first semester, thus resulting to
substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the
withdrawal of unobligated allotments of agencies with low levels of obligations
as of June 30, 2012, both for continuing and current allotments. This measure
will allow the maximum utilization of available allotments to fund and undertake
other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of
unobligated allotments of agencies as of June 30, 2012 to fund
priority and/or fast-moving programs/projects of the national
government;
2.2 To prescribe the reports and documents to be used as bases on
the withdrawal of said unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the
withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated
allotments as of June 30, 2012 of all national government agencies
(NGAs) charged against FY 2011 Continuing Appropriation (R.A.
No.10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
 3.1.2 Maintenance and Other Operating Expenses (MOOE)
related to the implementation of programs and projects, as well
as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension
benefits declared as savings by the agencies concerned based
on their updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified
programs, projects and activities of the departments/agencies
reflected in the DBM list shown as Annex A or specific programs and
projects as may be identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted
fiscal autonomy under the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative
Funding allocation scheme i.e., distribution of a predetermined
budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to
realignment conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication, Transportation
and Delivery, Repair and Maintenance, Supplies and
Materials and Utility which shall be used for the grant of
Collective Negotiation Agreement incentive benefit;
• Savings from mandatory expenditures which can be
realigned only in the last quarter after taking into
consideration the agency’s full year requirements, i.e.,
Petroleum, Oil and Lubricants, Water, Illumination, Power
Services, Telephone, other Communication Services and
Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso
counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund,
International Commitments Fund, PAMANA, Priority
Development Assistance Fund, Calamity Fund, Budgetary
Support to GOCCs and Allocation to LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance
Premium and Special Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake
procurement activities notwithstanding the implementation of the
policy of withdrawal of unobligated allotments until the end of the
third quarter, FY 2012. Even without the allotments, the agency shall
proceed in undertaking the procurement processes (i.e., procurement
planning up to the conduct of bidding but short of awarding of
contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and
DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated
allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to DBM not
later than July 30, 2012, the following budget accountability reports
as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2
of this Circular, the agency’s latest report available shall be used by
DBM as basis for withdrawal of allotment. The DBM shall
compute/approximate the agency’s obligation level as of June 30 to
derive its unobligated allotments as of same period. Example: If the
March 31 SAOB or FRO reflects actual obligations of P 800M then
the June 30 obligation level shall approximate to ₱1,600 M (i.e.,
₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No.
10147 which remained unobligated as of June 30, 2012 shall be
immediately considered for withdrawal. This policy is based on the
following considerations:
5.4.1 The departments/agencies’ approved priority programs
and projects are assumed to be implementation-ready and
doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations
may imply that the agency has a slower-than-programmed
implementation capacity or agency tends to implement projects
within a two-year timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based
on evaluation of the reports cited above and results of consultations
with the departments/agencies, withdraw the unobligated allotments
as of June 30, 2012 through issuance of negative Special Allotment
Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the
magnitude of withdrawn allotments. The report shall highlight the
agencies which failed to submit the June 30 reports required under
this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the
agencies/OUs concerned, from which the allotments were
withdrawn;
5.7.2 Realigned to cover additional funding for other existing
programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any
agency and to fund priority programs and projects not
considered in the 2012 budget but expected to be started or
implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may
submit to DBM a Special Budget Request (SBR), supported with the
following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement
processes i.e., Proof of Posting and/or Advertisement of the
Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these
categories shall be until the end of the third quarter i.e., September
30, 2012. After said cut-off date, the withdrawn allotments shall be
pooled and form part of the overall savings of the national
government.
5.10 Utilization of the consolidated withdrawn allotments for other
priority programs and projects as cited under item 5.7.3 of this
Circular, shall be subject to approval of the President. Based on the
approval of the President, DBM shall issue the SARO to cover the
approved priority expenditures subject to submission by the
agency/OU concerned of the SBR and supported with PFP and
MCP.
5.11 It is understood that all releases to be made out of the
withdrawn allotments (both 2011 and 2012 unobligated allotments)
shall be within the approved Expenditure Program level of the
national government for the current year. The SAROs to be issued
shall properly disclose the appropriation source of the release to
determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments shall be valid up to
December 31, 2012; and
• For charges under R.A. 10155 – allotments shall be valid up to
December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and
other reportorial requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all
agencies and departments as of June 30, 2012 that were charged against the
continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No.
10155) were subject to withdrawal through the issuance of negative SAROs,
but such allotments could be either: (1) reissued for the original PAPs of the
concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3)
used to augment existing PAPs of any agency and to fund priority PAPs not
considered in the 2012 budget but expected to be started or implemented in
2012. Financing the other priority PAPs was made subject to the approval of
the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn
unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented
and funded, that is — (1) by declaring "savings" coming from the various
departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds;
and (3) applying the "savings" and unprogrammed funds to augment existing
PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not
enact a law to establish the DAP, or to authorize the disbursement and release
of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and
COURAGE observe that the appropriations funded under the DAP were not
included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and
COURAGE, the DAP, being actually an appropriation that set aside public
funds for public use, should require an enabling law for its validity. VACC
maintains that the DAP, because it involved huge allocations that were
separate and distinct from the GAAs, circumvented and duplicated the GAAs
without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of the
1987 Constitution that "[n]o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
appropriation, but a program or an administrative system of prioritizing
spending; and that the adoption of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the
economy through accelerated spending. In the context of the DAP’s adoption
and implementation being a function pertaining to the Executive as the main
actor during the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not need to
legislate to adopt or to implement the DAP. Congress could appropriate but
would have nothing more to do during the Budget Execution Stage. Indeed,
appropriation was the act by which Congress "designates a particular fund, or
sets apart a specified portion of the public revenue or of the money in the
public treasury, to be applied to some general object of governmental
expenditure, or to some individual purchase or expense."124 As pointed out in
Gonzales v. Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as
nothing more than the legislative authorization prescribed by the Constitution
that money may be paid out of the Treasury,’ while appropriation made by law
refers to ‘the act of the legislature setting apart or assigning to a particular use
a certain sum to be used in the payment of debt or dues from the State to its
creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute
the laws, had sufficient discretion during the execution of the budget to adapt
the budget to changes in the country’s economic situation.127 He could adopt a
plan like the DAP for the purpose. He could pool the savings and identify the
PAPs to be funded under the DAP. The pooling of savings pursuant to the
DAP, and the identification of the PAPs to be funded under the DAP did not
involve appropriation in the strict sense because the money had been already
set apart from the public treasury by Congress through the GAAs. In such
actions, the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn unobligated allotments under the
DAP were not savings, and the use of such appropriations contravened
Section 25(5), Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly
adopted by the Executive to ramp up spending to accelerate economic growth,
the challenges posed by the petitioners constrain us to dissect the mechanics
of the actual execution of the DAP. The management and utilization of the
public wealth inevitably demands a most careful scrutiny of whether the
Executive’s implementation of the DAP was consistent with the Constitution,
the relevant GAAs and other existing laws.
a. Although executive discretion and flexibility are necessary in the execution of
the budget, any transfer of appropriated funds should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all
issues and needs that may come into play once the budget reaches its
execution stage. Executive discretion is necessary at that stage to achieve a
sound fiscal administration and assure effective budget implementation. The
heads of offices, particularly the President, require flexibility in their operations
under performance budgeting to enable them to make whatever adjustments
are needed to meet established work goals under changing conditions.128 In
particular, the power to transfer funds can give the President the flexibility to
meet unforeseen events that may otherwise impede the efficient
implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating
funds pursuant to the GAAs,129particularly when the funds are grouped to form
lump sum accounts.130 It is assumed that the agencies of the Government
enjoy more flexibility when the GAAs provide broader appropriation
items.131 This flexibility comes in the form of policies that the Executive may
adopt during the budget execution phase. The DAP – as a strategy to improve
the country’s economic position – was one policy that the President decided to
carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an
American constitutional scholar whose specialties have included budget policy,
has justified extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted.
There are many number of reasons why obligations and outlays by
administrators may have to differ from appropriations by legislators.
Appropriations are made many months, and sometimes years, in advance of
expenditures. Congress acts with imperfect knowledge in trying to legislate in
fields that are highly technical and constantly undergoing change. New
circumstances will develop to make obsolete and mistaken the decisions
reached by Congress at the appropriation stage. It is not practicable for
Congress to adjust to each new development by passing separate
supplemental appropriation bills. Were Congress to control expenditures by
confining administrators to narrow statutory details, it would perhaps protect its
power of the purse but it would not protect the purse itself. The realities and
complexities of public policy require executive discretion for the sound
management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial
discretion for administrators. They need to exercise judgment and take
responsibility for their actions, but those actions ought to be directed toward
executing congressional, not administrative policy. Let there be discretion, but
channel it and use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to transfer funds
within their respective offices, the Constitution itself ensures the fiscal
autonomy of their offices, and at the same time maintains the separation of
powers among the three main branches of the Government. The Court has
recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative
not only of the express mandate of the Constitution but especially as regards
the Supreme Court, of the independence and separation of powers upon which
the entire fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to
another within the Executive has not been the mere offshoot of established
usage, but has emanated from law itself. It has existed since the time of the
American Governors-General.134 Act No. 1902 (An Act authorizing the
Governor-General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to transfer from the
general fund moneys which have been returned thereto), passed on May 18,
1909 by the First Philippine Legislature,135 was the first enabling law that
granted statutory authority to the President to transfer funds. The authority was
without any limitation, for the Act explicitly empowered the Governor-General to
transfer any unexpended balance of appropriations for any bureau or office to
another, and to spend such balance as if it had originally been appropriated for
that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of
funds that could be transferred, thereby limiting the power to transfer funds.
Only 10% of the amounts appropriated for contingent or miscellaneous
expenses could be transferred to a bureau or office, and the transferred funds
were to be used to cover deficiencies in the appropriations also for
miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under
miscellaneous expenses to any other item of a certain bureau or office was
removed.
During the Commonwealth period, the power of the President to transfer funds
continued to be governed by the GAAs despite the enactment of the
Constitution in 1935. It is notable that the 1935 Constitution did not include a
provision on the power to transfer funds. At any rate, a shift in the extent of the
President’s power to transfer funds was again experienced during this era, with
the President being given more flexibility in implementing the budget. The
GAAs provided that the power to transfer all or portions of the appropriations in
the Executive Department could be made in the "interest of the public, as the
President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s
seemingly unbounded discretion in transferring funds.137 Its Committee on the
Budget and Appropriation proposed to prohibit the transfer of funds among the
separate branches of the Government and the independent constitutional
bodies, but to allow instead their respective heads to augment items of
appropriations from savings in their respective budgets under certain
limitations.138 The clear intention of the Convention was to further restrict, not to
liberalize, the power to transfer appropriations.139 Thus, the Committee on the
Budget and Appropriation initially considered setting stringent limitations on the
power to augment, and suggested that the augmentation of an item of
appropriation could be made "by not more than ten percent if the original item
of appropriation to be augmented does not exceed one million pesos, or by not
more than five percent if the original item of appropriation to be augmented
exceeds one million pesos."140 But two members of the Committee objected to
the ₱1,000,000.00 threshold, saying that the amount was arbitrary and might
not be reasonable in the future. The Committee agreed to eliminate the
₱1,000,000.00 threshold, and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the
Convention, which adopted the following final version under Section 16, Article
VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the Prime Minister, the Speaker, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may by law be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of
funds from one item to another, unless Congress enacted a law authorizing the
President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of the Constitutional omissions to transfer funds for the
purpose of augmenting any item from savings in another item in the GAA of
their respective offices. The leeway was limited to augmentation only, and was
further constricted by the condition that the funds to be transferred should
come from savings from another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its
Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the
authority to transfer any fund appropriated for the different departments,
bureaus, offices and agencies of the Executive Department which are included
in the General Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General Appropriations Act or
approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation
of the Executive Department in the General Appropriations Act, from savings in
the appropriations of another department, bureau, office or agency within the
Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege
granted under said Section 16. It empowers the President to indiscriminately
transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any department, bureau or
office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken, or whether or
not the transfer is for the purpose of augmenting the item to which said transfer
is to be made. It does not only completely disregard the standards set in the
fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional
infirmities render the provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by
the people of the 1987 Constitution, whose Section 25(5) of Article VI is
identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission
included Section 25(5), supra, to keep a tight rein on the exercise of the power
to transfer funds appropriated by Congress by the President and the other high
officials of the Government named therein. The Court stated in Nazareth v.
Villar:144
In the funding of current activities, projects, and programs, the general rule
should still be that the budgetary amount contained in the appropriations bill is
the extent Congress will determine as sufficient for the budgetary allocation for
the proponent agency. The only exception is found in Section 25 (5), Article VI
of the Constitution, by which the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions are authorized to transfer
appropriations to augmentany item in the GAA for their respective offices from
the savings in other items of their respective appropriations. The plain
language of the constitutional restriction leaves no room for the petitioner’s
posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in
Section 25(5), Article VI of the Constitution limiting the authority to transfer
savings only to augment another item in the GAA is strictly but reasonably
construed as exclusive. As the Court has expounded in Lokin, Jr. v.
Commission on Elections:
When the statute itself enumerates the exceptions to the application of the
general rule, the exceptions are strictly but reasonably construed. The
exceptions extend only as far as their language fairly warrants, and all doubts
should be resolved in favor of the general provision rather than the exceptions.
Where the general rule is established by a statute with exceptions, none but
the enacting authority can curtail the former. Not even the courts may add to
the latter by implication, and it is a rule that an express exception excludes all
others, although it is always proper in determining the applicability of the rule to
inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something
from the scope of the general words of a statute, which is otherwise within the
scope and meaning of such general words. Consequently, the existence of an
exception in a statute clarifies the intent that the statute shall apply to all cases
not excepted. Exceptions are subject to the rule of strict construction; hence,
any doubt will be resolved in favor of the general provision and against the
exception. Indeed, the liberal construction of a statute will seem to require in
many circumstances that the exception, by which the operation of the statute is
limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a
limitation on the President’s discretion over the appropriations during the
Budget Execution Phase.
b. Requisites for the valid transfer of appropriated funds under Section 25(5),
Article VI of the 1987 Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must
be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate,
the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of the Constitutional Commissions to
transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective offices; and (3) The purpose of the
transfer is to augment an item in the general appropriations law for their
respective offices.
b.1. First Requisite–GAAs of 2011 and 2012 lacked valid provisions to
authorize transfers of funds under the DAP; hence, transfers under the DAP
were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution,
must have an implementing law for it to be operative. That law, generally, is the
GAA of a given fiscal year. To comply with the first requisite, the GAAs should
expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high
officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the
DBM as justification for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of
2011 and 2012 were textually unfaithful to the Constitution for not carrying the
phrase "for their respective offices" contained in Section 25(5), supra. The
impact of the phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the President, the
transfer was to an item of appropriation within the Executive). The provisions
carried a different phrase ("to augment any item in this Act"), and the effect
was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds
from savings to augment any item in the GAAs even if the item belonged to an
office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions
cannot be used to claim authority to transfer appropriations from the Executive
to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the
counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section
25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from
appropriations within the respective offices; and that the transfer must be for
the purpose of augmenting an item of appropriation within the respective
offices.
b.2. Second Requisite – There were no savings from which funds could be
sourced for the DAP Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased
appropriations and withdrawn unobligated allotments — were not actual
savings within the context of Section 25(5), supra, and the relevant provisions
of the GAAs. Belgica argues that "savings" should be understood to refer to the
excess money after the items that needed to be funded have been funded, or
those that needed to be paid have been paid pursuant to the budget.146 The
petitioners posit that there could be savings only when the PAPs for which the
funds had been appropriated were actually implemented and completed, or
finally discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because such PAPs
had not actually been abandoned or discontinued yet.147 They stress that NBC
No. 541, by allowing the withdrawn funds to be reissued to the "original
program or project from which it was withdrawn," conceded that the PAPs from
which the supposed savings were taken had not been completed, abandoned
or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the
difference between the appropriation authorized by Congress and the actual
amount allotted for the appropriation; that the definition of "savings" in the
GAAs set only the parameters for determining when savings occurred; that it
was still the President (as well as the other officers vested by the Constitution
with the authority to augment) who ultimately determined when savings actually
existed because savings could be determined only during the stage of budget
execution; that the President must be given a wide discretion to accomplish his
tasks; and that the withdrawn unobligated allotments were savings inasmuch
as they were clearly "portions or balances of any programmed
appropriation…free from any obligation or encumbrances which are (i) still
available after the completion or final discontinuance or abandonment of the
work, activity or purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in
mind. The first principle is that Congress wields the power of the purse.
Congress decides how the budget will be spent; what PAPs to fund; and the
amounts of money to be spent for each PAP. The second principle is that the
Executive, as the department of the Government tasked to enforce the laws, is
expected to faithfully execute the GAA and to spend the budget in accordance
with the provisions of the GAA.149 The Executive is expected to faithfully
implement the PAPs for which Congress allocated funds, and to limit the
expenditures within the allocations, unless exigencies result to deficiencies for
which augmentation is authorized, subject to the conditions provided by law.
The third principle is that in making the President’s power to augment operative
under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it
delegates a fraction of its power to the Executive. But Congress does not
thereby allow the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or
substantial, or something that exists presently in fact, as opposed to something
that is merely theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against
expanding the scope of the power to augment. It is then indubitable that the
power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need for such funds had
ceased to exist, for only then could savings be properly realized. This
interpretation prevents the Executive from unduly transgressing Congress’
power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013,
reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance which are: (i) still available after
the completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized; (ii) from appropriations
balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures
resulting in improved systems and efficiencies and thus enabled agencies to
meet and deliver the required or planned targets, programs and services
approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no
longer existent.
The phrase "free from any obligation or encumbrance" in the definition of
savings in the GAAs conveyed the notion that the appropriation was at that
stage when the appropriation was already obligated and the appropriation was
already released. This interpretation was reinforced by the enumeration of the
three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise, considering
that only when the appropriation had reached the agency level could it be
determined whether (a) the PAP for which the appropriation had been
authorized was completed, finally discontinued, or abandoned; or (b) there
were vacant positions and leaves of absence without pay; or (c) the required or
planned targets, programs and services were realized at a lesser cost because
of the implementation of measures resulting in improved systems and
efficiencies.
The DBM declares that part of the savings brought under the DAP came from
"pooling of unreleased appropriations such as unreleased Personnel Services
appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per Zero-
Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the
treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere
description of the status of the items as unalloted or unreleased. They have not
yet ripened into categories of items from which savings can be generated.
Appropriations have been considered "released" if there has already been an
allotment or authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not needing
clearance), or a SARO (for those needing clearance), and consequently an
NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased,
for instance, because of noncompliance with documentary requirements (like
the Special Budget Request), or simply because of the unavailability of funds.
But the appropriations do not actually reach the agencies to which they were
allocated under the GAAs, and have remained with the DBM technically
speaking. Ergo, unreleased appropriations refer to appropriations with
allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the
statutory definition of savings, would seriously undercut the congressional
power of the purse, because such appropriations had not even reached and
been used by the agency concerned vis-à-vis the PAPs for which Congress
had allocated them. However, if an agency has unfilled positions in its plantilla
and did not receive an allotment and NCA for such vacancies, appropriations
for such positions, although unreleased, may already constitute savings for that
agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first part
of the definition of "savings" in the GAA, that is, as "portions or balances of any
programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the
three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances existed. This
signified that the DBM’s withdrawal of unobligated allotments had disregarded
the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory
Expenditures and Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as MOOE for a period
that already lapsed. Following this observation, MOOE for future months are
not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which
became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the same,
have been continuously calling the attention of all National Government
 agencies (NGAs) with low levels of obligations as of end of the first
quarter to speedup the implementation of their programs and projects in
the second quarter.
6.0 Said reminders were made in a series of consultation meetings with
the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the
department’s disposal, the level of financial performance of some
departments registered below program, with the targeted
obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated
balances as of June 30, 2012, both for continuing and current allotments
shall be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be
based on the list of slow moving projects to be identified by the agencies
and their catch up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated
allotments would be based on whether the allotments pertained to slow-moving
projects, or not. However, NBC No. 541 did not set in clear terms the criteria
for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments
as of June 30, 2012 ofall national government agencies (NGAs) charged
against FY 2011 Continuing Appropriation (R.A. No. 10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related
to the implementation of programs and projects, as well as
capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits
declared as savings by the agencies concerned based on their
undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the
"withdrawal of unobligated allotments of agencies with low levels of
obligations"151 "to fund priority and/or fast-moving programs/projects."152 But the
fact that the withdrawn allotments could be "[r]eissued for the original programs
and projects of the agencies/OUs concerned, from which the allotments were
withdrawn"153 supported the conclusion that the PAPs had not yet been finally
discontinued or abandoned. Thus, the purpose for which the withdrawn funds
had been appropriated was not yet fulfilled, or did not yet cease to exist,
rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects
are assumed to be implementation-ready and doable during the given
fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may
imply that the agency has a slower-than-programmed implementation
capacity or agency tends to implement projects within a two-year
timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of June 30,
2012, disregarded the 2-year period of availability of the appropriations for
MOOE and capital outlay extended under Section 65, General Provisions of
the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That appropriations
for MOOE and capital outlays under R.A. No. 9970 shall be made available up
to the end of FY 2011: PROVIDED, FURTHER, That a report on these
releases and obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations, either in printed form or
by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its
relevant issuances shortened the period of availability of the appropriations for
MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment
classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in this
Act shall be available for release and obligation for the purposes specified, and
under the same special provisions applicable thereto, until the end of FY 2013:
PROVIDED, That a report on these releases and obligations shall be submitted
to the Senate Committee on Finance and House Committee on Appropriations,
either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to
fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register
below program, even with the availability of funds at their disposal, the
targeted obligations/disbursements for each quarter will not be met. It is
important to note that these funds will lapse at the end of the fiscal year if
these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated
balances at the end of every quarter, both for continuing and current
allotments shall be withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be
based on the list of slow moving projects to be identified by the agencies
and their catch up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes
pan of one year, was further shortened to only a quarter of a year under the
DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in
order to have a larger fund available for discretionary spending. They aver that
the respondents, by withdrawing unobligated allotments in the middle of the
fiscal year, in effect deprived funding for PAPs with existing appropriations
under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments
were being withdrawn upon the instance of the implementing agencies based
on their own assessment that they could not obligate those allotments pursuant
to the President’s directive for them to spend their appropriations as quickly as
they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the following budget accountability
reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agency’s
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to ₱1,600 M (i.e.,
₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations; and that
the unbridled withdrawal of unobligated allotments and the retention of
appropriated funds were akin to the impoundment of appropriations that could
be allowed only in case of "unmanageable national government budget deficit"
under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and
2013 prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending,
not saving, policy as a last-ditch effort of the Executive to push agencies into
actually spending their appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the decision of the
Executive to refuse to spend funds for political or ideological reasons; and that
the withdrawal of allotments under NBC No. 541 was made pursuant to Section
38, Chapter 5, Book VI of the Administrative Code, by which the President was
granted the authority to suspend or otherwise stop further expenditure of funds
allotted to any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations were
invalid for being bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds cannot be
considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment
refers to a refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget authority of
any type." Impoundment under the GAA is understood to mean the retention or
deduction of appropriations. The 2011 GAA authorized impoundment only in
case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through retention
or deduction, unless in accordance with the rules and regulations to be issued
by the DBM: PROVIDED, That all the funds appropriated for the purposes,
programs, projects and activities authorized under this Act, except those
covered under the Unprogrammed Fund, shall be released pursuant to Section
33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or
deduction of appropriations authorized in this Act shall be effected only in
cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall
be construed to mean that (i) the actual national government budget deficit has
exceeded the quarterly budget deficit targets consistent with the full-year target
deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the Constitution, or
(ii) there are clear economic indications of an impending occurrence of such
condition, as determined by the Development Budget Coordinating Committee
and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be
regarded as impoundment because it entailed only the transfer of funds, not
the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012
and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund
releases from appropriations provided in this Act shall be transmitted intact or
in full to the office or agency concerned. No retention or deduction as reserves
or overhead shall be made, except as authorized by law, or upon direction of
the President of the Philippines. The COA shall ensure compliance with this
provision to the extent that sub-allotments by agencies to their subordinate
offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments
upon their release from the DBM, which was a different matter altogether. The
Court should not expand the meaning of the provision by applying it to the
withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative
Code of 1987 to justify the withdrawal of unobligated allotments. But the
provision authorized only the suspension or stoppage of further expenditures,
not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise
provided in the General Appropriations Act and whenever in his judgment the
public interest so requires, the President, upon notice to the head of office
concerned, is authorized to suspend or otherwise stop further expenditure of
funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used
for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance
with Section 38, supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that
remained unexpended at the end of the fiscal year were to be reverted to the
General Fund.1âwphi1 This was the mandate of Section 28, Chapter IV, Book
VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing
Appropriations.- Unexpended balances of appropriations authorized in the
General Appropriation Act shall revert to the unappropriated surplus of the
General Fund at the end of the fiscal year and shall not thereafter be available
for expenditure except by subsequent legislative enactment: Provided, that
appropriations for capital outlays shall remain valid until fully spent or reverted:
provided, further, that continuing appropriations for current operating
expenditures may be specifically recommended and approved as such in
support of projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President may authorize
the use of savings realized by an agency during given year to meet non-
recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the
annual budget preparation process and the preparation process and the
President may approve upon recommendation of the Secretary, the reversion
of funds no longer needed in connection with the activities funded by said
continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of the
fiscal year.
b.3. Third Requisite – No funds from savings could be transferred under the
DAP to augment deficient items not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer
should be "to augment an item in the general appropriations law for the
respective offices." The term "augment" means to enlarge or increase in size,
amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that
the appropriation for the PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or
project with an appropriation, which upon implementation, or subsequent
evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be
deficient before it could be augmented from savings. Note is taken of the fact
that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were implemented through
the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were
applied to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the respective
GAAs, namely:
(i) ₱1.5 billion for the Cordillera People’s Liberation Army;
(ii) ₱1.8 billion for the Moro National Liberation Front;
(iii) ₱700 million for assistance to Quezon Province;164
(iv) ₱50 million to ₱100 (million) each to certain senators;165
(v) ₱10 billion for the relocation of families living along dangerous zones
under the National Housing Authority;
(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko Sentral;
(vii) ₱5.4 billion landowners’ compensation under the Department of
Agrarian Reform;
(viii) ₱8.6 billion for the ARMM comprehensive peace and development
program;
(ix) ₱6.5 billion augmentation of LGU internal revenue allotments
(x) ₱5 billion for crucial projects like tourism road construction under the
Department of Tourism and the Department of Public Works and
Highways;
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional health
units; and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted for
because the funds were released following and pursuant to the standard
practices adopted by the DBM.167 In support of its argument, the OSG has
submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under
the DAP.168
Upon careful review of the documents contained in the seven evidence
packets, we conclude that the "savings" pooled under the DAP were allocated
to PAPs that were not covered by any appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted
Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under
the Department of Science and Technology (DOST) covered the amount of
₱1.6 Billion,169 broken down as follows:
APPROPRIATION PARTICULARS AMOUNT
CODE AUTHORIZED
 areas specifically stated in the GAA. As such, the DBM, sans legislative
A.03.a.01.a Generation of identified authorization, could not validly fund and implement such PAP under the DAP.
new knowledge as
and strategic In defending the disbursements, however, the OSG contends that the
technologies to Executive enjoyed sound discretion in implementing the budget given the
and research P 43,504,024 National generality in the language and the broad policy objectives identified under the
capability 1,164,517,589 Develop GAAs;172 and that the President enjoyed unlimited authority to spend the initial
building in 391,978,387 ment appropriations under his authority to declare and utilize savings,173 and in
priority areas P 1,600,000,000 keeping with his duty to faithfully execute the laws.
identified as Aside from this transfer under the DAP to the DREAM project exceeding by
strategic to Although the OSG rightly contends that the Executive was authorized to spend
almost 300% the appropriation by Congress for the program Generation of new
National in line with its mandate to faithfully execute the laws (which included the
knowledge and technologies and research capability building in priority areas
Development GAAs), such authority did not translate to unfettered discretion that allowed the
identified as strategic to National Development, the Executive allotted funds for
Personnel President to substitute his own will for that of Congress. He was still required to
personnel services and capital outlays. The Executive thereby substituted its
Services remain faithful to the provisions of the GAAs, given that his power to spend
will to that of Congress. Worse, the Executive had not earlier proposed any
Maintenance pursuant to the GAAs was but a delegation to him from Congress. Verily, the
amount for personnel services and capital outlays in the NEP that became the
and Other power to spend the public wealth resided in Congress, not in the
basis of the 2011 GAA.170
Operating Executive.174 Moreover, leaving the spending power of the Executive
Expenses It is worth stressing in this connection that the failure of the GAAs to set aside unrestricted would threaten to undo the principle of separation of powers.175
Capital Outlays any amounts for an expense category sufficiently indicated that Congress
Congress acts as the guardian of the public treasury in faithful discharge of its
purposely did not see fit to fund, much less implement, the PAP concerned.
power of the purse whenever it deliberates and acts on the budget proposal
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that This indication becomes clearer when even the President himself did not
submitted by the Executive.176 Its power of the purse is touted as the very
Congress had appropriated only ₱537,910,000 for MOOE, but nothing for recommend in the NEP to fund the PAP. The consequence was that any PAP
foundation of its institutional strength,177 and underpins "all other legislative
personnel services and capital outlays, to wit: requiring expenditure that did not receive any appropriation under the GAAs
decisions and regulating the balance of influence between the legislative and
could only be a new PAP, any funding for which would go beyond the authority
Personn Maintena Capital TOTAL executive branches of government."178 Such enormous power encompasses
laid down by Congress in enacting the GAAs. That happened in some
el nce Outlays the capacity to generate money for the Government, to appropriate public
instances under the DAP.
Service and funds, and to spend the money.179 Pertinently, when it exercises its power of
s Other In relation to the December 22, 2011 SARO issued to the Philippine Council for the purse, Congress wields control by specifying the PAPs for which public
Operatin Industry, Energy and Emerging Technology Research and Development money should be spent.
g (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis
It is the President who proposes the budget but it is Congress that has the final
Expendit Laboratory, which reads:
say on matters of appropriations.180For this purpose, appropriation involves two
ures
APPROPRIATION PARTICULARS AMOUNT governing principles, namely: (1) "a Principle of the Public Fisc, asserting that
II Operations CODE AUTHORIZED all monies received from whatever source by any part of the government are
I. public funds;" and (2) "a Principle of Appropriations Control, prohibiting
a Funding 177,406 1,887,36 49,090, 2,113,86 A.02.a Development, P 300,000,000 expenditure of any public money without legislative authorization."181To
. Assistance to ,000 5,000 000 1,000 integration and conform with the governing principles, the Executive cannot circumvent the
Science coordination of prohibition by Congress of an expenditure for a PAP by resorting to either
and the National public or private funds.182 Nor could the Executive transfer appropriated funds
Technology Research resulting in an increase in the budget for one PAP, for by so doing the
Activities System for appropriation for another PAP is necessarily decreased. The terms of both
Industry, appropriations will thereby be violated.
1 Central Office 1,554,23 1,554,23 Energy and
. 8,000 8,000 Emerging b.4 Third Requisite – Cross-border augmentations from savings were
Technology and prohibited by the Constitution
a. 537,910, 537,910,
Related Fields By providing that the President, the President of the Senate, the Speaker of the
Generati 000 000
Capital Outlays House of Representatives, the Chief Justice of the Supreme Court, and the
on of
new the appropriation code and the particulars appearing in the SARO did not Heads of the Constitutional Commissions may be authorized to augment any
knowled correspond to the program specified in the GAA, whose particulars were item in the GAA "for their respective offices," Section 25(5), supra, has
ge and Research and Management Services(inclusive of the following activities: (1) delineated borders between their offices, such that funds appropriated for one
technolo Technological and Economic Assessment for Industry, Energy and Utilities; (2) office are prohibited from crossing over to another office even in the guise of
gies and Dissemination of Science and Technology Information; and (3) Management of augmentation of a deficient item or items. Thus, we call such transfers of funds
research PCIERD Information System for Industry, Energy and Utilities. Even assuming cross-border transfers or cross-border augmentations.
capabilit that Development, integration and coordination of the National Research
y To be sure, the phrase "respective offices" used in Section 25(5), supra, refers
System for Industry, Energy and Emerging Technology and Related Fields– to the entire Executive, with respect to the President; the Senate, with respect
building the particulars stated in the SARO – could fall under the broad program
in to the Senate President; the House of Representatives, with respect to the
description of Research and Management Services– as appearing in the Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional
priority SARO, it would nonetheless remain a new activity by reason of its not being Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire? in both the Commission as well as in the House of Representatives; that’s how In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza,
we saw…(interrupted) representing Congress, announced a different characterization of the cross-
During the oral arguments on January 28, 2014, Sec. Abad admitted making border transfers of funds as in the nature of "aid" instead of "augmentation,"
some cross-border augmentations, to wit: JUSTICE BERSAMIN: viz:
JUSTICE BERSAMIN: So your position as Secretary of Budget is that you could do that? HONORABLE MENDOZA:
Alright, the whole time that you have been Secretary of Department of Budget SECRETARY ABAD: The cross-border transfers, if Your Honors please, is not an application of the
and Management, did the Executive Department ever redirect any part of DAP. What were these cross-border transfers? They are transfers of savings
savings of the National Government under your control cross border to another In an extreme instances because…(interrupted)
as defined in the various General Appropriations Act. So, that makes it similar
department? JUSTICE BERSAMIN: to the DAP, the use of savings. There was a cross-border which appears to be
SECRETARY ABAD: in violation of Section 25, paragraph 5 of Article VI, in the sense that the border
No, no, in all instances, extreme or not extreme, you could do that, that’s your was crossed. But never has it been claimed that the purpose was to augment a
Well, in the Memos that we submitted to you, such an instance, Your Honor feeling. deficient item in another department of the government or agency of the
SECRETARY ABAD: government. The cross-border transfers, if Your Honors please, were in the
JUSTICE BERSAMIN: nature of [aid] rather than augmentations. Here is a government entity separate
Can you tell me two instances? I don’t recall having read your material. Well, in that particular situation when the request was made by the and independent from the Executive Department solely in need of public funds.
Commission and the House of Representatives, we felt that we needed to The President is there 24 hours a day, 7 days a week. He’s in charge of the
SECRETARY ABAD: respond because we felt…(interrupted).183 whole operation although six or seven heads of government offices are given
the power to augment. Only the President stationed there and in effect in-
Well, the first instance had to do with a request from the House of The records show, indeed, that funds amounting to ₱143,700,000.00 and charge and has the responsibility for the failure of any part of the government.
Representatives. They started building their e-library in 2010 and they had a ₱250,000,000.00 were transferred under the DAP respectively to the You have election, for one reason or another, the money is not enough to hold
budget for about 207 Million but they lack about 43 Million to complete its 250 COA184 and the House of Representatives.185 Those transfers of funds, which election. There would be chaos if no money is given as an aid, not to augment,
Million requirements. Prior to that, the COA, in an audit observation informed constituted cross-border augmentations for being from the Executive to the but as an aid to a department like COA. The President is responsible in a way
the Speaker that they had to continue with that construction otherwise the COA and the House of Representatives, are graphed as follows:186 that the other heads, given the power to augment, are not. So, he cannot very
whole building, as well as the equipments therein may suffer from serious well allow this, if Your Honor please.189
deterioration. And at that time, since the budget of the House of
Representatives was not enough to complete 250 Million, they wrote to the OFFICE PURPOSE DATE AMOUNT JUSTICE LEONEN:
President requesting for an augmentation of that particular item, which was RELEASE (In thousand
granted, Your Honor. The second instance in the Memos is a request from the May I move to another point, maybe just briefly. I am curious that the position
D pesos) now, I think, of government is that some transfers of savings is now considered
Commission on Audit. At the time they were pushing very strongly the good
governance programs of the government and therefore, part of that is a Reserv Releas to be, if I’m not mistaken, aid not augmentation. Am I correct in my hearing of
requirement to conduct audits as well as review financial reports of many e es your argument?
agencies. And in the performance of that function, the Commission on Audit Impose HONORABLE MENDOZA:
needed information technology equipment as well as hire consultants and d
litigators to help them with their audit work and for that they requested funds That’s our submission, if Your Honor, please.
from the Executive and the President saw that it was important for the Commission IT Infrastructure 11/11/11 143,700
Commission to be provided with those IT equipments and litigators and on Program and hiring JUSTICE LEONEN:
consultants and the request was granted, Your Honor. Audit of additional
litigation experts May I know, Justice, where can we situate this in the text of the Constitution?
JUSTICE BERSAMIN: Where do we actually derive the concepts that transfers of appropriation from
Congress – Completion of the 07/23/12 207,03 250,000 one branch to the other or what happened in DAP can be considered a said?
These cross border examples, cross border augmentations were not supported House of construction of the 4 What particular text in the Constitution can we situate this?
by appropriations… Representativ Legislative Library (Savin
HONORABLE MENDOZA:
es and Archives gs of
SECRETARY ABAD:
Building/Congressi HOR) There is no particular provision or statutory provision for that matter, if Your
They were, we were augmenting existing items within their… (interrupted) onal e-library Honor please. It is drawn from the fact that the Executive is the executive in-
charge of the success of the government.
JUSTICE BERSAMIN: The respondents further stated in their memorandum that the President "made
available" to the "Commission on Elections the savings of his department upon JUSTICE LEONEN:
No, appropriations before you augmented because this is a cross border and [its] request for funds…"187 This was another instance of a cross-border
the tenor or text of the Constitution is quite clear as far as I am concerned. It augmentation. So, the residual powers labelled in Marcos v. Manglapus would be the basis for
says here, "The power to augment may only be made to increase any item in this theory of the government?
the General Appropriations Law for their respective offices." Did you not feel The respondents justified all the cross-border transfers thusly:
constricted by this provision? HONORABLE MENDOZA:
99. The Constitution does not prevent the President from transferring savings
SECRETARY ABAD: of his department to another department upon the latter’s request, provided it is Yes, if Your Honor, please.
the recipient department that uses such funds to augment its own JUSTICE LEONEN:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriation. In such a case, the President merely gives the other department
appropriations, Your Honor. What we thought we did was to transfer savings access to public funds but he cannot dictate how they shall be applied by that
which was needed by the Commission to address deficiency in an existing item department whose fiscal autonomy is guaranteed by the Constitution.188
A while ago, Justice Carpio mentioned that the remedy is might be to go to
Congress. That there are opportunities and there have been opportunities of
the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary
situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), supra, disallowing cross border transfers
was disobeyed. Cross-border transfers, whether as augmentation, or as aid,
were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed funds despite the original revenue
targets not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided
in the GAAs for 2011, 2012,and 2013. The respondents stress, however, that
the unprogrammed funds were not brought under the DAP as savings, but as
separate sources of funds; and that, consequently, the release and use of
unprogrammed funds were not subject to the restrictions under Section 25(5),
supra.
The documents contained in the Evidence Packets by the OSG have confirmed
that the unprogrammed funds were treated as separate sources of funds. Even
so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when
the unprogrammed funds could be released and the purposes for which they
could be used.
The petitioners point out that a condition for the release of the unprogrammed
funds was that the revenue collections must exceed revenue targets; and that
the release of the unprogrammed funds was illegal because such condition
was not met.191
The respondents disagree, holding that the release and use of the
unprogrammed funds under the DAP were in accordance with the pertinent
provisions of the GAAs. In particular, the DBM avers that the unprogrammed
funds could be availed of when any of the following three instances occur, to
wit: (1) the revenue collections exceeded the original revenue targets proposed
in the BESFs submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the BESFs; or(3)
newly-approved loans for foreign assisted projects were secured, or when
conditions were triggered for other sources of funds, such as perfected loan
agreements for foreign-assisted projects.192 This view of the DBM was adopted
by all the respondents in their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were three instances
when unprogrammed funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM – the collection of new revenues
from sources not originally considered in the BESFs – was not included. This
meant that the collection of additional revenues from new sources did not
warrant the release of the unprogrammed funds. Hence, even if the revenues
not considered in the BESFs were collected or generated, the basic condition
that the revenue collections should exceed the revenue targets must still be
complied with in order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds
could be released was bolstered by the following texts of the Special
Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including savings generated from programmed
appropriations for the year: PROVIDED, That collections arising from sources
not considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in
case of newly approved loans for foreign-assisted projects, the existence of a
perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds: PROVIDED,
FURTHERMORE, That if there are savings generated from the programmed
appropriations for the first two quarters of the year, the DBM may, subject to
the approval of the President, release the pertinent appropriations under the
Unprogrammed Fund corresponding to only fifty percent (50%) of the said
savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the
balance of the total savings from programmed appropriations for the year shall
be subject to fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in
case of newly approved loans for foreign-assisted projects, the existence of a
perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections
arising from sources not considered in the aforesaid original revenue targets
may be used to cover releases from appropriations in this Fund" gave the
authority to use such additional revenues for appropriations funded from the
unprogrammed funds. They did not at all waive compliance with the basic
requirement that revenue collections must still exceed the original revenue
targets.
In contrast, the texts of the provisos with regard to additional revenues
generated from newly-approved foreign loans were clear to the effect that the
perfected loan agreement would be in itself "sufficient basis" for the issuance of
a SARO to release the funds but only to the extent of the amount of the loan. In
such instance, the revenue collections need not exceed the revenue targets to
warrant the release of the loan proceeds, and the mere perfection of the loan
agreement would suffice.
It can be inferred from the foregoing that under these provisions of the GAAs
the additional revenues from sources not considered in the BESFs must be
taken into account in determining if the revenue collections exceeded the
revenue targets. The text of the relevant provision of the 2013 GAA, which was
substantially similar to those of the GAAs for 2011 and 2012, already made this
explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including collections arising from sources not considered in
the aforesaid original revenue target, as certified by the BTr: PROVIDED, That
in case of newly approved loans for foreign-assisted projects, the existence of
a perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
Consequently, that there were additional revenues from sources not
considered in the revenue target would not be enough. The total revenue
collections must still exceed the original revenue targets to justify the release of
the unprogrammed funds (other than those from newly-approved foreign
loans).
The present controversy on the unprogrammed funds was rooted in the correct
interpretation of the phrase "revenue collections should exceed the original
revenue targets." The petitioners take the phrase to mean that the total
revenue collections must exceed the total revenue target stated in the BESF,
but the respondents understand the phrase to refer only to the collections for
each source of revenue as enumerated in the BESF, with the condition being
deemed complied with once the revenue collections from a particular source
already exceeded the stated target.
The BESF provided for the following sources of revenue, with the
corresponding revenue target stated for each source of revenue, to wit:
TAX REVENUES
Taxes on Net Income and Profits
Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT
Selected Excises on Goods
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform
Activities
Other Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees and Charges
BTR Income
Government Services
Interest on NG Deposits
 Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from
the Bureau of Treasury (BTr) to the effect that the revenue collections had
exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to only
one identified source of revenue – the dividends from the shares of stock held
by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented
the certification dated March 4, 2011 issued by DOF Undersecretary Gil S.
Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of
Financing for 2011, the programmed income from dividends from shares of
stock in government-owned and controlled corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury,
the National Government has recorded dividend income amounting to ₱23.8
billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by
National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National
Government for the period January to March 2012 amounted to ₱19.419 billion
compared to the full year program of ₱5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013
issued by National Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National
Government for the period January to May 2013 amounted to ₱12.438 billion
compared to the full year program of ₱10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build
and operate the NAIA expressway amounting to ₱11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to ₱23.8
billion in 2011, ₱19.419 billion in 2012, and ₱12.438 billion in 2013 the BTr
had exceeded only the ₱5.5 billion in target revenues in the form of dividends
from stocks in each of 2011 and 2012, and only the ₱10 billion in target
revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue
targets was to be construed in light of the purpose for which the
unprogrammed funds were incorporated in the GAAs as standby
appropriations to support additional expenditures for certain priority PAPs
should the revenue collections exceed the resource targets assumed in the
budget or when additional foreign project loan proceeds were realized. The
unprogrammed funds were included in the GAAs to provide ready cover so as
not to delay the implementation of the PAPs should new or additional revenue
sources be realized during the year.200 Given the tenor of the certifications, the
unprogrammed funds were thus not yet supported by the corresponding
resources.201
The revenue targets stated in the BESF were intended to address the funding
requirements of the proposed programmed appropriations. In contrast, the
unprogrammed funds, as standby appropriations, were to be released only
when there were revenues in excess of what the programmed appropriations
required. As such, the revenue targets should be considered as a whole, not
individually; otherwise, we would be dealing with artificial revenue surpluses.
The requirement that revenue collections must exceed revenue target should
be understood to mean that the revenue collections must exceed the total of
the revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess revenue as to one
source of revenue would be an unsound fiscal management measure because
it would disregard the budget plan and foster budget deficits, in contravention
of the Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the
system of checks and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail themselves
of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the funds
under the DAP; and that the Senators who supposedly availed themselves of
said funds were differently treated as to the amounts they respectively
received.
Anent the petitioners’ theory that the DAP violated the system of checks and
balances, Luna submits that the grant of the funds under the DAP to some
legislators forced their silence about the issues and anomalies surrounding the
DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to
identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive;
that such situation constituted undue and unjustified legislative encroachment
in the functions of the Executive; and that the President arrogated unto himself
the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the
2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution,204 because the legislators
relinquished the power of appropriation to the Executive, and exhibited a
reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in
the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the violation
of the Equal Protection Clause was really against the constitutionality of the
DAP, the arguments of the petitioners should be directed to the entitlement of
the legislators to the funds, not to the proposition that all of the legislators
should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause,
which focuses on the release of funds under the DAP to legislators, lacks
factual and legal basis. The allegations about Senators and Congressmen
being unaware of the existence and implementation of the DAP, and about
some of them having refused to accept such funds were unsupported with
relevant data. Also, the claim that the Executive discriminated against some
legislators on the ground alone of their receiving less than the others could not
of itself warrant a finding of contravention of the Equal Protection Clause. The
denial of equal protection of any law should be an issue to be raised only by
parties who supposedly suffer it, and, in these cases, such parties would be the
few legislators claimed to have been discriminated against in the releases of
funds under the DAP. The reason for the requirement is that only such affected
legislators could properly and fully bring to the fore when and how the denial of
equal protection occurred, and explain why there was a denial in their situation.
The requirement was not met here. Consequently, the Court was not put in the
position to determine if there was a denial of equal protection. To have the
Court do so despite the inadequacy of the showing of factual and legal support
would be to compel it to speculate, and the outcome would not do justice to
those for whose supposed benefit the claim of denial of equal protection has
been made.
The argument that the release of funds under the DAP effectively stayed the
hands of the legislators from conducting congressional inquiries into the legality
and propriety of the DAP is speculative. That deficiency eliminated any need to
consider and resolve the argument, for it is fundamental that speculation would
not support any proper judicial determination of an issue simply because
nothing concrete can thereby be gained. In order to sustain their constitutional
challenges against official acts of the Government, the petitioners must
discharge the basic burden of proving that the constitutional infirmities actually
existed.205 Simply put, guesswork and speculation cannot overcome the
presumption of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the
system of checks and balances in place in our constitutional system. Our
earlier expositions on the DAP and its implementing issuances infringing the
doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the
adoption and implementation of the DAP constituted an assumption by the
Executive of Congress’ power of appropriation, we have already held that the
DAP and its implementing issuances were policies and acts that the Executive
could properly adopt and do in the execution of the GAAs to the extent that
they sought to implement strategies to ramp up or accelerate the economy of
the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm,
we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional
cannot give rise to any right or obligation.206 However, the generality of the rule
makes us ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to except from the
rigid application of the rule the instances in which the void law or executive act
produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely
not a novel one, has been exhaustively explained in De Agbayani v. Philippine
National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise
suffering from that infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the
courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.’ Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws of the
Constitution. It is understandable why it should be so, the Constitution being
supreme and paramount. Any legislative or executive act contrary to its terms
cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary,
in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard
be had to what has been done while such legislative or executive act was in
operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned
with. This is merely to reflect awareness that precisely because the judiciary is
the governmental organ which has the final say on whether or not a legislative
or executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be
no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual existence
of a statute, prior to such a determination [of unconstitutionality], is an
operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration. The effect of
the subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and
particular conduct, private and official.’"
The doctrine of operative fact recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded.
In short, it nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or unconstitutional law
produces no effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or
executive act, but is resorted to only as a matter of equity and fair play.209 It
applies only to cases where extraordinary circumstances exist, and only when
the extraordinary circumstances have met the stringent conditions that will
permit its application.
We find the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from equity
and fair play. The consequences resulting from the DAP and its related
issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional
executive act. The term executive act is broad enough to include any and all
acts of the Executive, including those that are quasi legislative and quasi-
judicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential
Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the
operative fact doctrine should be limited to statutes and rules and regulations
issued by the executive department that are accorded the same status as that
of a statute or those which are quasi-legislative in nature. Thus, the minority
concludes that the phrase ‘executive act’ used in the case of De Agbayani v.
Philippine National Bank refers only to acts, orders, and rules and regulations
that have the force and effect of law. The minority also made mention of the
Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v.
Benito, where it was supposedly made explicit that the operative fact doctrine
applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what ‘executive act’ mean. Moreover, while orders,
rules and regulations issued by the President or the executive branch have
fixed definitions and meaning in the Administrative Code and jurisprudence, the
phrase ‘executive act’ does not have such specific definition under existing
laws. It should be noted that in the cases cited by the minority, nowhere can it
be found that the term ‘executive act’ is confined to the foregoing. Contrarily,
the term ‘executive act’ is broad enough to encompass decisions of
administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as
Chairman of the Presidential Commission on Good Government (PCGG) and
as Chief Presidential Legal Counsel (CPLC) which was declared
unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said
case, this Court ruled that the concurrent appointment of Elma to these offices
is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since
these are incompatible offices. Notably, the appointment of Elma as Chairman
of the PCGG and as CPLC is, without a question, an executive act. Prior to the
declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of
Elma which cannot just be set aside or invalidated by its subsequent
invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that
despite the invalidity of the jurisdiction of the military courts over civilians,
certain operative facts must be acknowledged to have existed so as not to
trample upon the rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that ‘military tribunals pertain to the
Executive Department of the Government and are simply instrumentalities of
the executive power, provided by the legislature for the President as
Commander-in-Chief to aid him in properly commanding the army and navy
and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are accorded the same
status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine
only to executive issuances like orders and rules and regulations, said principle
can nonetheless be applied, by analogy, to decisions made by the President or
the agencies under the executive department. This doctrine, in the interest of
justice and equity, can be applied liberally and in a broad sense to encompass
said decisions of the executive branch. In keeping with the demands of equity,
the Court can apply the operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act which is quasi-
legislative in nature but also on decisions or orders of the executive branch
which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and
fairness.
Significantly, a decision made by the President or the administrative agencies
has to be complied with because it has the force and effect of law, springing
from the powers of the President under the Constitution and existing laws. Prior
to the nullification or recall of said decision, it may have produced acts and
consequences in conformity to and in reliance of said decision, which must be
respected. It is on this score that the operative fact doctrine should be applied
to acts and consequences that resulted from the implementation of the PARC
Resolution approving the SDP of HLI. (Bold underscoring supplied for
emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the
Court likewise declared that "for the operative fact doctrine to apply, there must
be a ‘legislative or executive measure,’ meaning a law or executive issuance."
Thus, the Court opined there that the operative fact doctrine did not apply to a
mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by the
Commissioner or this Court. The reversal is not given retroactive effect. This, in
essence, is the doctrine of operative fact. There must, however, be a rule or
ruling issued by the Commissioner that is relied upon by the taxpayer in good
faith. A mere administrative practice, not formalized into a rule or ruling, will not
suffice because such a mere administrative practice may not be uniformly and
consistently applied. An administrative practice, if not formalized as a rule or
ruling, will not be known to the general public and can be availed of only by
those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the
DAP and its related issuances were executive acts.1avvphi1 The DAP itself, as
a policy, transcended a merely administrative practice especially after the
Executive, through the DBM, implemented it by issuing various memoranda
and circulars. The pooling of savings pursuant to the DAP from the allotments
made available to the different agencies and departments was consistently
applied throughout the entire Executive. With the Executive, through the DBM,
being in charge of the third phase of the budget cycle – the budget execution
phase, the President could legitimately adopt a policy like the DAP by virtue of
his primary responsibility as the Chief Executive of directing the national
economy towards growth and development. This is simply because savings
could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in
the GAA, or that did not have proper appropriation covers, as well as to
augment items pertaining to other departments of the Government in clear
violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted an
operative fact that produced consequences in the real as well as juristic worlds
of the Government and the Nation is to be impractical and unfair. Unless the
doctrine is held to apply, the Executive as the disburser and the offices under it
and elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be
beyond debate that the implementation of the DAP yielded undeniably positive
results that enhanced the economic welfare of the country. To count the
positive results may be impossible, but the visible ones, like public
infrastructure, could easily include roads, bridges, homes for the homeless,
hospitals, classrooms and the like. Not to apply the doctrine of operative fact to
the DAP could literally cause the physical undoing of such worthy results by
destruction, and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a valid
law would result in inequity and injustice;212but where no such result would
ensue, the general rule that an unconstitutional law is totally ineffective should
apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal, civil,
administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and
prohibition; and DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of
Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation
of powers, namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the
statutory definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to
augment the appropriations of other offices outside the Executive;
and
(c) The funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite
the absence of a certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV.
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." – Article II,
Section 1, Constitution
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the
electorate during political contests no matter how seemingly benign will be
tolerated.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates — during
elections.
Before us is a special civil action for certiorari and prohibition with application
for preliminary injunction and temporary restraining order1 under Rule 65 of the
Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on
the front walls of the cathedral within public view. The first tarpaulin contains
the message "IBASURA RH Law" referring to the Reproductive Health Law of
2012 or Republic Act No. 10354. The second tarpaulin is the subject of the
present case.4 This tarpaulin contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise
known as the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted
against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering
the immediate removal of the tarpaulin; otherwise, it will be constrained to file
an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or
against the candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
the size (even with the subsequent division of the said tarpaulin into two), as
the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election
offense case against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary restraining
order.14 They question respondents’ notice dated February 22, 2013 and letter
issued on February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in
enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after
notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4
of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS
ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE
EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW THIS
COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS
ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA"
CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE
AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I Based on ABS-CBN, this court could review orders and decisions of
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice
and letter are not final orders, decisions, rulings, or judgments of the
COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the
ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide
all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr.
v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v.
COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of
the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
Samar filed the election protest.32 At issue was the validity of the promulgation
of a COMELEC Division resolution.33 No motion for reconsideration was filed to
raise this issue before the COMELEC En Banc. This court declared that it did
not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final
orders, rulings and decisionsof the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must be a final decision or
resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest
case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First Division issued a
status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated
in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38However, consistent with ABS-CBN Broadcasting
Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of
filing a motion for reconsideration] may be glossed over to prevent miscarriage
of justice, when the issue involves the principle of social justice or the
protection of labor, when the decision or resolution sought to be set aside is a
nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40
COMELEC — in electoral contests — despite not being reviewed by the
COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the general
rule that only final orders should be questioned with this court. The ponencia
for this court, however, acknowledged the exceptions to the general rule in
ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of Meycauayan,
Bulacan.45 The COMELEC Second Division ruled that petitioner could not
qualify for the 2007 elections due to the findings in an administrative case that
he engaged in vote buying in the 1995 elections.46No motion for
reconsideration was filed before the COMELEC En Banc. This court, however,
took cognizance of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance.49 This court clarified
the general rule and refused to take cognizance of the review of the COMELEC
order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over this
case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers. When it issued the
notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice51 dated
February 22,2013 and letter52 dated February 27, 2013 ordering the removal of
the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes
the court and defines its powers."55Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the desire
to be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the election
of representatives in a republican government or the revision of the basic text
of the Constitution. The zeal with which we protect this kind of speech does not
depend on our evaluation of the cogency of the message. Neither do we
assess whether we should protect speech based on the motives of COMELEC.
We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in
practice will define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are
capable of repetition. Under the conditions in which it was issued and in view of
the novelty of this case,it could result in a "chilling effect" that would affect
other citizens who want their voices heard on issues during the elections. Other
citizens who wish to express their views regarding the election and other
related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising grave abuse of
discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this court’s expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether ornot 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.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide
all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(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.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its
exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s
notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
be interpreted to mean that COMELEC has the exclusive power to decide any
and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section
5(1) of the Constitution.This provision provides for this court’s original
jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this court’s power to review.
During elections, we have the power and the duty to correct any grave abuse
of discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This
constitutional mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this
case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition.57 They add that observation of the hierarchy of courts is compulsory,
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while
there are exceptions to the general rule on hierarchy of courts, none of these
are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of the
issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of
the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts,
and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it.
The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious
and important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-
called extraordinary writs should be exercised only where absolutely necessary
or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the
Court of Appeals, or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of
these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by
this court to ensure that every level of the judiciary performs its designated
roles in an effective and efficient manner. Trial courts do not only determine the
facts from the evaluation of the evidence presented before them. They are
likewise competent to determine issues of law which may include the validity of
an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach
within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically
presented before them. In many instances, the facts occur within their territorial
jurisdiction, which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The consequences, of
course, would be national in scope. There are, however, some cases where
resort to courts at their level would not be practical considering their decisions
could still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews
the determination of facts and law made by the trial courts. It is collegiate in
nature. This nature ensures more standpoints in the review of the actions of the
trial court. But the Court of Appeals also has original jurisdiction over most
special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating — in the light of new circumstances or in the light of some
confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in
order to protect constitutional rights when these become exigent should not be
emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court
has "full discretionary power to take cognizance and assume jurisdiction [over]
special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and
specifically raised in the petition."70 As correctly pointed out by petitioners,71 we
have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and prohibition
toassail the constitutionality of actions of both legislative and executive
branches of the government.72
In this case, the assailed issuances of respondents prejudice not only
petitioners’ right to freedom of expression in the present case, but also of
others in future similar cases. The case before this court involves an active
effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in
political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of
reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas
in furtherance of political decision-making is recognized. It deserves the
highest protection the courts may provide, as public participation in nation-
building isa fundamental principle in our Constitution. As such, their right to
engage in free expression of ideas must be given immediate protection by this
court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of
freedom of speech and freedom of expression which warrants invocation of
relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for
one’s chosen candidate, but also the right to vocalize that choice to the public
in general, in the hope of influencing their votes. It may be said that in an
election year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of
first impression, no jurisprudence yet exists that will guide the lower courts on
this matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower
courts:
In the interest of justice and to settle once and for all the important issue of bail
in extradition proceedings, we deem it best to take cognizance of the present
case. Such proceedings constitute a matter of first impression over which there
is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does
the issue of whether the right of suffrage includes the right of freedom of
expression. This is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon
v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to
defer to the higher judgmentof this Court in the consideration of its validity,
which is better determined after a thorough deliberation by a collegiate body
and with the concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power,
that can rule with finality on whether COMELEC committed grave abuse of
discretion or performed acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be ignored. This case was
filed during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to
this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held
that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections:
that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not
have been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the
powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents’ acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to this
court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens’ right to bear
arms,83 government contracts involving modernization of voters’ registration
lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct
action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the hierarchy
of courts is respected, the present case falls under the recognized exceptions
and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this court’s power of review.
They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also
states that the "State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In
any event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is
true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on
the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be
equally perceived as giving real life to the candidates’ right of free expression
rather than being viewed as an undue restriction of that freedom. The wisdom
in the enactment of the law, i.e., that which the legislature deems to be best in
giving life to the Constitutional mandate, is not for the Court to question; it is a
matter that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point
in this case.
The present petition does not involve a dispute between the rich and poor, or
the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation
of the political question doctrine by respondents, this court is not proscribed
from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary
power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text
of the law should be. In political forums, particularly the legislature, the creation
of the textof the law is based on a general discussion of factual circumstances,
broadly construed in order to allow for general application by the executive
branch. Thus, the creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the
legal provision seek the courts’ understanding of the law.
The complementary nature of the political and judicial branches of government
is essential in order to ensure that the rights of the general public are upheld at
all times. In order to preserve this balance, branches of government must
afford due respectand deference for the duties and functions constitutionally
delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft
doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of
the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the historical and social context
of the case and the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in cases such as Daza
v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners from
the Commission on Appointments. In times past, this would have involved a
quint essentially political question as it related to the dominance of political
parties in Congress. However, in these cases, this court exercised its power of
judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again reiterated
in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
the possible existence ofa political question did not bar an examination of
whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of
discretion in the President’s use of his power to call out the armed forces to
prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a
former President resigned was not a political question even if the
consequences would be to ascertain the political legitimacy of a successor
President.
Many constitutional cases arise from political crises. The actors in such crises
may use the resolution of constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to exercise its power of
judicial review expanding on principles that may avert catastrophe or resolve
social conflict.
This court’s understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power
of judicial review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute interference with
the functions of the President.98
The concept of judicial power in relation to the concept of the political question
was discussed most extensively in Francisco v. HRET.99 In this case, the
House of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial
power as including "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." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and
legislative departments including the President and the Congress, in the
exercise of their discretionary powers.100 (Emphasis in the original, citations
omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases." (Emphasis
and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis
and italics supplied.)
 ....
In our jurisdiction, the determination of whether an issue involves a truly
political and non-justiciable question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly
acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if
there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of
this court.
In this case, the Bill of Rights gives the utmost deference to the right to free
speech. Any instance that this right may be abridged demands judicial scrutiny.
It does not fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in
Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law."103 They add that the proper venue to assail the
validity of the assailed issuances was in the course of an administrative
hearing to be conducted by COMELEC.104 In the event that an election offense
is filed against petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not proper in this
case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that
the controversy is already ripe for adjudication. Ripeness is the "prerequisite
that something had by then been accomplished or performed by either branch
[or in this case, organ of government] before a court may come into the
picture."106
Petitioners’ exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELEC’s letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their freedom
of speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top."108 Sovereignty resides
in the people.109 Political speech is a direct exercise of the sovereignty. The
principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when
the respondent is a department secretary whose acts as analter ego of the
President bear the implied and assumed approval of the latter; (g) when to
require exhaustion of administrative remedies would be unreasonable; (h)
when it would amount to a nullification of a claim; (i) when the subject matter is
a private land in land case proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there are circumstances
indicating the urgency of judicial intervention."111 (Emphasis supplied, citation
omitted)
The circumstances emphasized are squarely applicable with the present case.
First, petitioners allegethat the assailed issuances violated their right to
freedom of expression and the principle of separation of church and state. This
is a purely legal question. Second, the circumstances of the present case
indicate the urgency of judicial intervention considering the issue then on the
RH Law as well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or
suspend the rules or to except a case from their operation when compelling
reasons so warrant, or whenthe purpose of justice requires it, [and when]
[w]hat constitutes [as] good and sufficient cause that will merit suspension of
the rules is discretionary upon the court".112Certainly, this case of first
impression where COMELEC has threatenedto prosecute private parties who
seek to participate in the elections by calling attention to issues they want
debated by the publicin the manner they feel would be effective is one of those
cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin.113 However, all of
these provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do theybelong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which
provides:
Section 4. The Commission may,during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible
elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during
the plebiscite for the creation of the Cordillera Autonomous
Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting
journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that
the "evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in
terms of advertising space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates[,]"120 thus, their
right to expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders
nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(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 candidates. (Emphasis supplied) Based on the
enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by
COMELEC. This was followed bythe assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only
mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas for their
candidates in not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post, display or exhibit
election propaganda: Provided, That the size ofthe poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of which
shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post
any lawful propaganda material in private places with the consent of the owner
thereof, and in public places or property which shall be allocated equitably and
impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following
section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these
Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It will
be presumed that the candidates and parties caused the posting of campaign
materials outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the Election Officer
of the city or municipality where the unlawful election propaganda are posted or
displayed.
Members of the PNP and other law enforcement agencies called upon by the
Election Officeror other officials of the COMELEC shall apprehend the violators
caught in the act, and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign materials
only apply to candidates and political parties, and petitioners are neither of the
two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also
states that these are "allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of candidates and
political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for
a similar wording. These provisions show that election propaganda refers to
matter done by or on behalf of and in coordination with candidates and political
parties. Some level of coordination with the candidates and political parties for
whom the election propaganda are released would ensure that these
candidates and political parties maintain within the authorized expenses
limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was
no allegation that petitioners coordinated with any of the persons named in the
tarpaulin regarding its posting. On the other hand, petitioners posted the
tarpaulin as part of their advocacy against the RH Law. Respondents also cite
National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during
election period.127
National Press Club involved the prohibition on the sale and donation of space
and time for political advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was brought by
representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space
and time for political advertisements is tantamount to censorship, which
necessarily infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National
Press Club. However, this case does not apply as most of the petitioners were
electoral candidates, unlike petitioners in the instant case. Moreover, the
subject matter of National Press Club, Section 11(b) of Republic Act No.
6646,129 only refers to a particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano emphasized that the provision
did not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their qualifications, and
program for government. Compared to Sanidadwherein the columnists lost
their ability to give their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice
and letter. It was not merelya regulation on the campaigns of candidates vying
for public office. Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking
any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a public office by a
political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity. Public expressions or opinions
or discussions of probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this Article.
(Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is that
the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that
is, a statement of either appreciation or criticism on votes made in the passing
of the RH law. Thus, petitioners invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the
tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering
itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of the
Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119
of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s
permit for the use of streets and public places for purposes such as athletic
games, sports, or celebration of national holidays.135 What was questioned was
not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s
public meeting.136 Nevertheless, this court recognized the constitutional right to
freedom of speech, to peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition for mandamus to compel
respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC
En Banc Resolution No. 98-1419 where the COMELEC resolved to approve
the issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this case
and, consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided in
the US Constitution. The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the change of
the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a
wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging the freedom of speech, expression or of the press . . . ."141 Speech
may be said to be inextricably linked to freedom itself as "[t]he right to think is
the beginning of freedom, and speech must be protected from the government
because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably believes that
such actions will be taken by the audience in the manner intended; and (2) the
audience so takes the actions."144 "[I]n communicative action[,] the hearer may
respond to the claims by . . . either accepting the speech act’s claims or
opposing them with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of
speech sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when
‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring
into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction itself
as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
who were members of the religious sect Jehovah’s Witnesses were to be
expelled from school for refusing to salute the flag, sing the national anthem,
and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz
discussed how the salute is a symbolic manner of communication and a valid
form of expression.150 He adds that freedom of speech includes even the right
to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that
the Bill of Rights that guarantees to the individual the liberty to utter what is in
his mind also guarantees to him the liberty not to utter what is not in his mind.
The salute is a symbolic manner of communication that conveys its messageas
clearly as the written or spoken word. As a valid form of expression, it cannot
be compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This
coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular
views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within
rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the
present Constitution,this court has applied its precedent version to expressions
other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to
the classification of the motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression."153 This court
recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium of expression he
may use, should be freed from the censor."155 This court found that "[the
Board’s] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that
there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it
forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary person’s perspective, those who post
their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may
translate to more opportunities to amplify, explain, and argue points which the
speakers might want to communicate. Rather than simply placing the names
and images of political candidates and an expression of support, larger spaces
can allow for brief but memorable presentations of the candidates’ platforms for
governance. Larger spaces allow for more precise inceptions of ideas, catalyze
reactions to advocacies, and contribute more to a more educated and
reasoned electorate. A more educated electorate will increase the possibilities
of both good governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates
or the political parties, that speaks. Too often, the terms of public discussion
during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should
in fact encourage it. Between the candidates and the electorate, the latter have
the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives
to avoid difficult political standpoints and instead focus on appearances and
empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to
protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 To
ensure order in running the state’s affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable. Necessarily,
this includes the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies
in the opportunity to discuss freely supposed grievances and proposed
remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market
place of ideas. This theory was articulated by Justice Holmes in that "the
ultimate good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas -
that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider,
test, and develop their own conclusions."167 A free, open, and dynamic market
place of ideas is constantly shaping new ones. This promotes both stability and
change where recurring points may crystallize and weak ones may develop. Of
course, free speech is more than the right to approve existing political beliefs
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes,
[the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of
ideas.
Third, free speech involves self-expression that enhances human dignity. This
right is "a means of assuring individual self-fulfillment,"170 among others. In
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public affairs
as well as in the discipline of abusive public officers. The citizen is accorded
these rights so that he can appeal to the appropriate governmental officers or
agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums for
the development of civil skills, for deliberation, and for the formation of identity
and community spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals and the state -
a free space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have
similar and shared values and ideals, to join together and forward common
goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through [the]
framework [of democratic governance]."175 Federalist framers led by James
Madison were concerned about two potentially vulnerable groups: "the citizenry
at large - majorities - who might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by "dominant factions of
the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not
only to guard the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part."178 We should strive to
ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a
menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid
this situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. This includes "free expression
and political participation"183 in that they can "vote for candidates who share
their views, petition their legislatures to [make or] change laws, . . . distribute
literature alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a
point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners’ way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by
COMELEC under its constitutional mandate.187 Election propaganda is defined
under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates."188 They argue
that the tarpaulin was their statement of approval and appreciation of the
named public officials’ act of voting against the RH Law, and their criticism
toward those who voted in its favor.189It was "part of their advocacy campaign
against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and
curtail[ed] [their] freedom of expression should be declared unconstitutional
and void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values."193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court discussed
the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then
the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities,
ofthe influential and powerful, and of oligarchs - political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality
of our civil and political institutions; and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions."195 (Citations
omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our jurisprudence
as early as 1969, which was Justice Barredo’s concurring and dissenting
opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others
miss, that genuine democracy thrives only where the power and right of the
people toelect the men to whom they would entrust the privilege to run the
affairs of the state exist. In the language of the declaration of principles of our
Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article
II). Translating this declaration into actuality, the Philippines is a republic
because and solely because the people in it can be governed only by officials
whom they themselves have placed in office by their votes. And in it is on this
cornerstone that I hold it tobe self-evident that when the freedoms of speech,
press and peaceful assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power in our
government must be ready to undergo exposure any moment of the day or
night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those
who would regard public dissection of the establishment as an attribute to be
indulged by the people only at certain periods of time. I consider the freedoms
of speech, press and peaceful assembly and redress of grievances, when
exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage
itself would be next to useless if these liberties cannot be untrammelled [sic]
whether as to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right
of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and
evaluation ofthe permissible scope of restrictions on various categories of
speech. We have ruled, for example, that in our jurisdiction slander or libel,
lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers
to speech "both intended and received as a contribution to public deliberation
about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On
the other hand, commercial speech has been defined as speech that does "no
more than propose a commercial transaction."202 The expression resulting from
the content of the tarpaulin is, however, definitely political speech. In Justice
Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as
well as the timing of its posting, makes it subject of the regulations in RA 9006
and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH
issue, by itself,is not an electoralmatter, the slant that the petitioners gave the
issue converted the non-election issue into a live election one hence, Team
Buhay and Team Patay and the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or
the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included,
while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs
shall not be considered acts of election campaigning or partisan politicalactivity
unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects
and parameters should be deemed narrowly tailored only in relation to the facts
and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need
for full discussion of public affairs. We acknowledged that free speech includes
the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of official dom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with the
balm of a clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In the
1951 case of Espuelas v. People,208 this court noted every citizen’s privilege to
criticize his or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous condemnation of
the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate by
means of posters or circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente adds that he
would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie in the
fact that there may be something worth hearing from the dissenter [and] [t]hat
is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against
their government contributes to every society’s goal for development. It puts
forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646,
which prohibits mass media from selling print space and air time for campaign
except to the COMELEC, to be a democracy-enhancing measure.216This court
mentioned how "discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper functioning of the
government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs the
people what the issues are, and who are supporting what issues."218 At the
heart of democracy is every advocate’s right to make known what the people
need to know,219 while the meaningful exercise of one’s right of suffrage
includes the right of every voter to know what they need to know in order to
make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate
on public issues, and the freedom of expression especially in relation to
information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more
for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression
and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to
which all other rights and even government protection of state interest must
bow."222
The right to freedom of expression isindeed not absolute. Even some forms of
protected speech are still subjectto some restrictions. The degree of restriction
may depend on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based on the viewpoint of
the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-
neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-
based as it applies only to political speech and not to other forms of speech
such as commercial speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner regulation, it’s still
unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or
content-based.227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the
elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression
of non-candidates will be adjudged as "election paraphernalia." There are no
existing bright lines to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use their resources to be
able to raise public issues that should be tackled by the candidates as what
has happened in this case. COMELEC’s discretion to limit speech in this case
is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of
the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure.228 Thus, in
Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be
substantive, ‘extremely serious and the degree of imminence extremely
high.’"230 "Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered by
the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the
subject matter of the utterance or speech."232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the
1948 case of Primicias v. Fugoso.234The ordinance in this case was construed
to grant the Mayor discretion only to determine the public places that may be
used for the procession ormeeting, but not the power to refuse the issuance of
a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that
it shall not beinjurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn vehicles
along certain roads at specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop that
the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps
that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test
is the standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions
imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the mannerby which speech is relayed but not the content of what is
conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints
on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is required
for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in
several cases.252 A content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest
is unrelated to the suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC
to regulate the tarpaulin. As discussed earlier, this is protected speech by
petitioners who are non-candidates. On the second requirement, not only must
the governmental interest be important or substantial, it must also be
compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
State’s mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in
TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding
of a free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters
are necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the
right of [a private citizen] to freely express his choice and exercise his right of
free speech."258 In any case, faced with both rights to freedom of speech and
equality, a prudent course would be to "try to resolve the tension in a way that
protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that
the private property owner’s consent be obtained when posting election
propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present facts
do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C,
Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(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 candidates. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify regulation
of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two
feet (2’) by three feet (3’) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged and
not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent
or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to
achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners’
message and violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech
by the electorate. Given the stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust discussion during
elections.
The form of expression is just as important as the message itself. In the words
of Marshall McLuhan, "the medium is the message."266 McLuhan’s colleague
and mentor Harold Innis has earlier asserted that "the materials on which
words were written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are made
ostensibly by "friends" but in reality are really paid for by the candidate or
political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this
is not the situation that confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship
to any political candidate should not be held hostage by the possibility of abuse
by those seeking to be elected. It is true that there can be underhanded,
covert, or illicit dealings so as to hide the candidate’s real levels of
expenditures. However, labelling all expressions of private parties that tend to
have an effect on the debate in the elections as election paraphernalia would
be too broad a remedy that can stifle genuine speech like in this case. Instead,
to address this evil, better and more effective enforcement will be the least
restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for the
campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the campaign,
they will instead use their resources directly in a way that the candidate or
political party would have doneso. This may effectively skirt the constitutional
and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates
and political parties will carry in their election posters or media ads. The
message of petitioner, taken as a whole, is an advocacy of a social issue that it
deeply believes. Through rhetorical devices, it communicates the desire of
Diocese that the positions of those who run for a political position on this social
issue be determinative of how the public will vote. It primarily advocates a
stand on a social issue; only secondarily — even almost incidentally — will
cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form
that employs such devices as sarcasm, irony and ridicule to deride prevailing
vices or follies,"268 and this may target any individual or group in society, private
and government alike. It seeks to effectively communicate a greater purpose,
often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire
had two defining features: "one is wit or humor founded on fantasy or a sense
of the grotesque and absurd, the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of
dead individuals nor could the Archbishop of the Diocese of Bacolod have
intended it to mean that the entire plan of the candidates in his list was to
cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay"
is juxtaposed with the list of "Team Buhay" that further emphasizes the theme
of its author: Reproductive health is an important marker for the church of
petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary allusion
to any social objective. Thus, they usually simply exhort the public to vote for a
person with a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always
been wary of censorship or subsequent punishment that entails evaluation of
the speaker’s viewpoint or the content of one’s speech. This is especially true
when the expression involved has political consequences. In this case, it hopes
to affect the type of deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not
the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for
the weakest dissent. Tolerance has always been a libertarian virtue whose
version is embedded in our Billof Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given
us pause. The unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that may soon
evolve into creative solutions to grave social problems. This is the utilitarian
version. It could also be that it is just part of human necessity to evolve through
being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It
contains other provisions which, taken together with the guarantee of free
expression, enhances each other’s value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing
or emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s
authentic self or to participate in the self determination of one’s communities is
not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination."275 In
his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine one’s own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of
creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to
be created even for the freest of the existing societies.277 (Emphasis in the
original)
Marcuse suggests that the democratic argument — with all opinions presented
to and deliberated by the people — "implies a necessary condition, namely,
that the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace
of ideas’ is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and overpowered
minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and indoctrinations.
The tolerance of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of stringent protections
for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty."284 Cass
Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for realizing
the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of
common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech with
more speech."289 This view moves away from playing down the danger as
merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in some
cases, the idea of more speech may not be enough. Professor Laurence Tribe
observed the need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who
are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section
"prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the Commission on
Elections."294 This court explained that this provision only regulates the time
and manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections.
(Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of
measures that protect and enhance the right of all the people to human dignity,
reducesocial, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for
more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a
bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is consistent
with the libertarian suspicion on the use of viewpoint as well as content to
evaluate the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative
rather than affirmative language. It uses ‘speech’ as its subject and not
‘speakers’.298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers.299 Pursuant to
this, "government must leave speakers and listeners in the private order to their
own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this
view that freedom of speech includes "not only the right to express one’s views,
but also other cognate rights relevant to the free communication [of] ideas, not
excluding the right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure — the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to truly reflect
the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place
of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures case of
Buckley v. Valeo "condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority
did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the
decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds
does not ease the plight of those without funds in the first place . . . [and] even
if one’s main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there
are saturation levels and a point where spending no longer pays off in votes
per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the majority may have the effect
of drowning out the speech and the messages of those in the minority. In a
sense, social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better access to
media that reaches a wider audience than those who have less. Those who
espouse the more popular ideas will have better reception than the subversive
and the dissenters of society.To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation
that allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount toan election paraphernalia to be validly regulated
by law.
Regulation of election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who do not speak
as members of a political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be
provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with
respect to the time, place, and manner of the rendition of the message. In no
situation may the speech be prohibited or censored onthe basis of its content.
For this purpose, it will notmatter whether the speech is made with or on
private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners consists
of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 — if applied to this case, will not pass the test
of reasonability. A fixed size for election posters or tarpaulins without any
relation to the distance from the intended average audience will be arbitrary. At
certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to
the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of
the right to suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention
of regulations relating to election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have
also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material
on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains
the private property of petitioners. Their right to use their property is likewise
protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizen’s
private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution
protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366,
391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free
use, enjoyment, and disposal of a person’s acquisitions without control or
diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v.
Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when
this right is joined by a "liberty" interest, the burden of justification on the part of
the Government must be exceptionally convincing and irrefutable. The burden
is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits
the posting or display of election propaganda in any place, whether public or
private, except inthe common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression may
be made. COMELEC’s infringement upon petitioners’ property rights as in the
present case also reaches out to infringement on their fundamental right to
speech.
Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners’ property rights. Election laws and
regulations must be reasonable. It must also acknowledge a private individual’s
right to exercise property rights. Otherwise, the due process clause will be
violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the
posting of election propaganda in private property without the consent of the
owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
property.
V purpose or effect therefore is to remove a burden on, or facilitate the exercise
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing
the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the separation of church and
state.320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. Noreligious test shall be required for the exercise of civil or
political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession
and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or
any other religious make such act immune from any secular regulation.324 The
religious also have a secular existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
bishop amounts to religious expression. This notwithstanding petitioners’ claim
that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that
every act can be motivated by moral, ethical, and religious considerations. In
terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a
secular character that may, from the point of view of others who do not share
the same faith or may not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive
on this court. Certainly, our powers of adjudication cannot be blinded by bare
claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically"
held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a balance between the
assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their
of, a person’s or institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible,
from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of the
Catholic church appears to coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the expression within the ambit
of religious speech. On the contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay" according to their respective
votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter. With
all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion
in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any
doubtas to its nature as speech with political consequences and not religious
speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National This. is a form of speech hopeful of a quality of democracy that we should all
Labor Relations Commission333 cited by petitioners finds no application in the deserve. It is protected as a fundamental and primordial right by our
present case. The posting of the tarpaulin does not fall within the category of Constitution. The expression in the medium chosen by petitioners deserves our
matters that are beyond the jurisdiction of civil courts as enumerated in the protection.
Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached WHEREFORE, the instant petition is GRANTED. The temporary restraining
religious significance."334 order previously issued is hereby made permanent. The act of the COMELEC
in issuing the assailed notice dated February 22, 2013 and letter dated
A FINAL NOTE February 27, 2013 is declared unconstitutional.
We maintain sympathies for the COMELEC in attempting to do what it thought SO ORDERED.
was its duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities
and reduce spending among candidates and their registered political parties. It
is not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those
who are running for public office.Their message may be construed
generalizations of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or
"Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on
the basis of a single issue — and a complex piece of legislation at that — can
easily be interpreted as anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts were expressed, as
in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It
provides space for all to be guided by their conscience, not only in the act that
they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant institutions,
even religious ones. That they made their point dramatically and in a large way
does not necessarily mean that their statements are true, or that they have
basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It
is a specie of expression protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but
their parishioner’s actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues.
This is not speechby candidates or political parties to entice votes. It is a
portion of the electorate telling candidates the conditions for their election. It is
the substantive content of the right to suffrage.