G.R. No.

168056 September 1, 2005

ABAKADA GURO PARTY LIST (Formerly AASJAS) OFFICERS SAMSON S. ALCANTARA and
ED VINCENT S. ALBANO, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA; HONORABLE SECRETARY
OF THE DEPARTMENT OF FINANCE CESAR PURISIMA; and HONORABLE COMMISSIONER
OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., Respondent.

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

G.R. No. 168207

AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO

M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, AND SERGIO R. OSMEÑA III,
Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR., COMMISSIONER OF THE BUREAU OF INTERNAL
REVENUE, Respondent.

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

G.R. No. 168461

ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO

ANTONIO; PETRON DEALERS’ ASSOCIATION represented by its President, RUTH E. BARBIBI;
ASSOCIATION OF CALTEX DEALERS’ OF THE PHILIPPINES represented by its President,
MERCEDITAS A. GARCIA; ROSARIO ANTONIO doing business under the name and style of "ANB
NORTH SHELL SERVICE STATION"; LOURDES MARTINEZ doing business under the name and
style of "SHELL GATE – N. DOMINGO"; BETHZAIDA TAN doing business under the name and style
of "ADVANCE SHELL STATION"; REYNALDO P. MONTOYA doing business under the name and
style of "NEW LAMUAN SHELL SERVICE STATION"; EFREN SOTTO doing business under the
name and style of "RED FIELD SHELL SERVICE STATION"; DONICA CORPORATION
represented by its President, DESI TOMACRUZ; RUTH E. MARBIBI doing business under the name
and style of "R&R PETRON STATION"; PETER M. UNGSON doing business under the name and
style of "CLASSIC STAR GASOLINE SERVICE STATION"; MARIAN SHEILA A. LEE doing
business under the name and style of "NTE GASOLINE & SERVICE STATION"; JULIAN CESAR P.
POSADAS doing business under the name and style of "STARCARGA ENTERPRISES";
ADORACION MAÑEBO doing business under the name and style of "CMA MOTORISTS CENTER";
SUSAN M. ENTRATA doing business under the name and style of "LEONA’S GASOLINE STATION
and SERVICE CENTER"; CARMELITA BALDONADO doing business under the name and style of
"FIRST CHOICE SERVICE CENTER"; MERCEDITAS A. GARCIA doing business under the name
and style of "LORPED SERVICE CENTER"; RHEAMAR A. RAMOS doing business under the name
and style of "RJRAM PTT GAS STATION"; MA. ISABEL VIOLAGO doing business under the name
and style of "VIOLAGO-PTT SERVICE CENTER"; MOTORISTS’ HEART CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’
HARVARD CORPORATION represented by its Vice-President for Operations, JOSELITO F.
FLORDELIZA; MOTORISTS’ HERITAGE CORPORATION represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA; PHILIPPINE STANDARD OIL CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; ROMEO MANUEL
doing business under the name and style of "ROMMAN GASOLINE STATION"; ANTHONY ALBERT
CRUZ III doing business under the name and style of "TRUE SERVICE STATION", Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of the Department of Finance and
GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of Internal
Revenue, Respondent.

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G.R. No. 168463

FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J. VILLANUEVA,

RODOLFO G. PLAZA, DARLENE ANTONINO-CUSTODIO, OSCAR G. MALAPITAN, BENJAMIN C.
AGARAO, JR. JUAN EDGARDO M. ANGARA, JUSTIN MARC SB. CHIPECO, FLORENCIO G.
NOEL, MUJIV S. HATAMAN, RENATO B. MAGTUBO, JOSEPH A. SANTIAGO, TEOFISTO DL.
GUINGONA III, RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI and TEODORO A. CASIÑO,
Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of Finance, GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of Internal Revenue, and EDUARDO R. ERMITA, in his
capacity as Executive Secretary, Respondent.

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

G.R. No. 168730

BATAAN GOVERNOR ENRIQUE T. GARCIA, JR. Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as the Executive Secretary; HON. MARGARITO
TEVES, in his capacity as Secretary of Finance; HON. JOSE MARIO BUNAG, in his capacity as the
OIC Commissioner of the Bureau of Internal Revenue; and HON. ALEXANDER AREVALO, in his
capacity as the OIC Commissioner of the Bureau of Customs, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

The expenses of government, having for their object the interest of all, should be borne by everyone,
and the more man enjoys the advantages of society, the more he ought to hold himself honored in
contributing to those expenses.

-Anne Robert Jacques Turgot (1727-1781)

French statesman and economist

Mounting budget deficit, revenue generation, inadequate fiscal allocation for education, increased
emoluments for health workers, and wider coverage for full value-added tax benefits … these are the
reasons why Republic Act No. 9337 (R.A. No. 9337)1 was enacted. Reasons, the wisdom of which,
the Court even with its extensive constitutional power of review, cannot probe. The petitioners in
these cases, however, question not only the wisdom of the law, but also perceived constitutional
infirmities in its passage.
Every law enjoys in its favor the presumption of constitutionality. Their arguments notwithstanding,
petitioners failed to justify their call for the invalidity of the law. Hence, R.A. No. 9337 is not
unconstitutional.

LEGISLATIVE HISTORY

R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705,
and Senate Bill No. 1950.

House Bill No. 35552 was introduced on first reading on January 7, 2005. The House Committee on
Ways and Means approved the bill, in substitution of House Bill No. 1468, which Representative
(Rep.) Eric D. Singson introduced on August 8, 2004. The President certified the bill on January 7,
2005 for immediate enactment. On January 27, 2005, the House of Representatives approved the
bill on second and third reading.

House Bill No. 37053 on the other hand, substituted House Bill No. 3105 introduced by Rep.
Salacnib F. Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its "mother bill"
is House Bill No. 3555. The House Committee on Ways and Means approved the bill on February 2,
2005. The President also certified it as urgent on February 8, 2005. The House of Representatives
approved the bill on second and third reading on February 28, 2005.

Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 19504 on March
7, 2005, "in substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into consideration House
Bill Nos. 3555 and 3705." Senator Ralph G. Recto sponsored Senate Bill No. 1337, while Senate Bill
Nos. 1838 and 1873 were both sponsored by Sens. Franklin M. Drilon, Juan M. Flavier and Francis
N. Pangilinan. The President certified the bill on March 11, 2005, and was approved by the Senate
on second and third reading on April 13, 2005.

On the same date, April 13, 2005, the Senate agreed to the request of the House of Representatives
for a committee conference on the disagreeing provisions of the proposed bills.

Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555,
House Bill No. 3705, and Senate Bill No. 1950, "after having met and discussed in full free and
conference," recommended the approval of its report, which the Senate did on May 10, 2005, and
with the House of Representatives agreeing thereto the next day, May 11, 2005.

On May 23, 2005, the enrolled copy of the consolidated House and Senate version was transmitted
to the President, who signed the same into law on May 24, 2005. Thus, came R.A. No. 9337.

July 1, 2005 is the effectivity date of R.A. No. 9337.5 When said date came, the Court issued a
temporary restraining order, effective immediately and continuing until further orders, enjoining
respondents from enforcing and implementing the law.

Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking
through Mr. Justice Artemio V. Panganiban, voiced the rationale for its issuance of the temporary
restraining order on July 1, 2005, to wit:

J. PANGANIBAN : . . . But before I go into the details of your presentation, let me just tell you a little
background. You know when the law took effect on July 1, 2005, the Court issued a TRO at about 5
o’clock in the afternoon. But before that, there was a lot of complaints aired on television and on
radio. Some people in a gas station were complaining that the gas prices went up by 10%. Some
people were complaining that their electric bill will go up by 10%. Other times people riding in
domestic air carrier were complaining that the prices that they’ll have to pay would have to go up by
10%. While all that was being aired, per your presentation and per our own understanding of the law,
that’s not true. It’s not true that the e-vat law necessarily increased prices by 10% uniformly isn’t it?

ATTY. BANIQUED : No, Your Honor.

J. PANGANIBAN : It is not?

ATTY. BANIQUED : It’s not, because, Your Honor, there is an Executive Order that granted the
Petroleum companies some subsidy . . . interrupted

J. PANGANIBAN : That’s correct . . .

ATTY. BANIQUED : . . . and therefore that was meant to temper the impact . . . interrupted

J. PANGANIBAN : . . . mitigating measures . . .

ATTY. BANIQUED : Yes, Your Honor.

J. PANGANIBAN : As a matter of fact a part of the mitigating measures would be the elimination of
the Excise Tax and the import duties. That is why, it is not correct to say that the VAT as to
petroleum dealers increased prices by 10%.

ATTY. BANIQUED : Yes, Your Honor.

J. PANGANIBAN : And therefore, there is no justification for increasing the retail price by 10% to
cover the E-Vat tax. If you consider the excise tax and the import duties, the Net Tax would probably
be in the neighborhood of 7%? We are not going into exact figures I am just trying to deliver a point
that different industries, different products, different services are hit differently. So it’s not correct to
say that all prices must go up by 10%.

ATTY. BANIQUED : You’re right, Your Honor.

J. PANGANIBAN : Now. For instance, Domestic Airline companies, Mr. Counsel, are at present
imposed a Sales Tax of 3%. When this E-Vat law took effect the Sales Tax was also removed as a
mitigating measure. So, therefore, there is no justification to increase the fares by 10% at best 7%,
correct?

ATTY. BANIQUED : I guess so, Your Honor, yes.

J. PANGANIBAN : There are other products that the people were complaining on that first day, were
being increased arbitrarily by 10%. And that’s one reason among many others this Court had to
issue TRO because of the confusion in the implementation. That’s why we added as an issue in this
case, even if it’s tangentially taken up by the pleadings of the parties, the confusion in the
implementation of the E-vat. Our people were subjected to the mercy of that confusion of an across
the board increase of 10%, which you yourself now admit and I think even the Government will admit
is incorrect. In some cases, it should be 3% only, in some cases it should be 6% depending on these
mitigating measures and the location and situation of each product, of each service, of each
company, isn’t it?
ATTY. BANIQUED : Yes, Your Honor.

J. PANGANIBAN : Alright. So that’s one reason why we had to issue a TRO pending the clarification
of all these and we wish the government will take time to clarify all these by means of a more
detailed implementing rules, in case the law is upheld by this Court. . . .6

The Court also directed the parties to file their respective Memoranda.

G.R. No. 168056

Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition for
prohibition on May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A. No.
9337, amending Sections 106, 107 and 108, respectively, of the National Internal Revenue Code
(NIRC). Section 4 imposes a 10% VAT on sale of goods and properties, Section 5 imposes a 10%
VAT on importation of goods, and Section 6 imposes a 10% VAT on sale of services and use or
lease of properties. These questioned provisions contain a uniformproviso authorizing the President,
upon recommendation of the Secretary of Finance, to raise the VAT rate to 12%, effective January
1, 2006, after any of the following conditions have been satisfied, to wit:

. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following
conditions has been satisfied:

(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or

(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).

Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of its
exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987 Philippine
Constitution.

G.R. No. 168207

On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise assailing
the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337.

Aside from questioning the so-called stand-by authority of the President to increase the VAT rate to
12%, on the ground that it amounts to an undue delegation of legislative power, petitioners also
contend that the increase in the VAT rate to 12% contingent on any of the two conditions being
satisfied violates the due process clause embodied in Article III, Section 1 of the Constitution, as it
imposes an unfair and additional tax burden on the people, in that: (1) the 12% increase is
ambiguous because it does not state if the rate would be returned to the original 10% if the
conditions are no longer satisfied; (2) the rate is unfair and unreasonable, as the people are unsure
of the applicable VAT rate from year to year; and (3) the increase in the VAT rate, which is supposed
to be an incentive to the President to raise the VAT collection to at least 2 4/5 of the GDP of the
previous year, should only be based on fiscal adequacy.
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the
Bicameral Conference Committee is a violation of the "no-amendment rule" upon last reading of a
bill laid down in Article VI, Section 26(2) of the Constitution.

G.R. No. 168461

Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association of Pilipinas Shell
Dealers, Inc.,et al., assailing the following provisions of R.A. No. 9337:

1) Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on depreciable
goods shall be amortized over a 60-month period, if the acquisition, excluding the VAT components,
exceeds One Million Pesos (₱1, 000,000.00);

2) Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of input tax
to be credited against the output tax; and

3) Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its
political subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final
withholding tax on gross payments of goods and services, which are subject to 10% VAT under
Sections 106 (sale of goods and properties) and 108 (sale of services and use or lease of
properties) of the NIRC.

Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive,
excessive, and confiscatory.

Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or

property without due process of law under Article III, Section 1 of the Constitution. According to
petitioners, the contested sections impose limitations on the amount of input tax that may be
claimed. Petitioners also argue that the input tax partakes the nature of a property that may not be
confiscated, appropriated, or limited without due process of law. Petitioners further contend that like
any other property or property right, the input tax credit may be transferred or disposed of, and that
by limiting the same, the government gets to tax a profit or value-added even if there is no profit or
value-added.

Petitioners also believe that these provisions violate the constitutional guarantee of equal protection
of the law under Article III, Section 1 of the Constitution, as the limitation on the creditable input tax
if: (1) the entity has a high ratio of input tax; or (2) invests in capital equipment; or (3) has several
transactions with the government, is not based on real and substantial differences to meet a valid
classification.

Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI,
Section 28(1) of the Constitution, and that it is the smaller businesses with higher input tax to output
tax ratio that will suffer the consequences thereof for it wipes out whatever meager margins the
petitioners make.

G.R. No. 168463

Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed
this petition forcertiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337 on
the following grounds:
1) Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in
violation of Article VI, Section 28(2) of the Constitution;

2) The Bicameral Conference Committee acted without jurisdiction in deleting the no pass
on provisions present in Senate Bill No. 1950 and House Bill No. 3705; and

3) Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121,
125,7 148, 151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article VI,
Section 24(1) of the Constitution, which provides that all appropriation, revenue or tariff bills shall
originate exclusively in the House of Representatives

G.R. No. 168730

On the eleventh hour, Governor Enrique T. Garcia filed a petition for certiorari and prohibition on July
20, 2005, alleging unconstitutionality of the law on the ground that the limitation on the creditable
input tax in effect allows VAT-registered establishments to retain a portion of the taxes they collect,
thus violating the principle that tax collection and revenue should be solely allocated for public
purposes and expenditures. Petitioner Garcia further claims that allowing these establishments to
pass on the tax to the consumers is inequitable, in violation of Article VI, Section 28(1) of the
Constitution.

RESPONDENTS’ COMMENT

The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents. Preliminarily,
respondents contend that R.A. No. 9337 enjoys the presumption of constitutionality and petitioners
failed to cast doubt on its validity.

Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA

630 (1994), respondents argue that the procedural issues raised by petitioners, i.e., legality of the
bicameral proceedings, exclusive origination of revenue measures and the power of the Senate
concomitant thereto, have already been settled. With regard to the issue of undue delegation of
legislative power to the President, respondents contend that the law is complete and leaves no
discretion to the President but to increase the rate to 12% once any of the two conditions provided
therein arise.

Respondents also refute petitioners’ argument that the increase to 12%, as well as the 70%
limitation on the creditable input tax, the 60-month amortization on the purchase or importation of
capital goods exceeding ₱1,000,000.00, and the 5% final withholding tax by government agencies,
is arbitrary, oppressive, and confiscatory, and that it violates the constitutional principle on
progressive taxation, among others.

Finally, respondents manifest that R.A. No. 9337 is the anchor of the government’s fiscal reform
agenda. A reform in the value-added system of taxation is the core revenue measure that will tilt the
balance towards a sustainable macroeconomic environment necessary for economic growth.

ISSUES

The Court defined the issues, as follows:

PROCEDURAL ISSUE
Whether R.A. No. 9337 violates the following provisions of the Constitution:

a. Article VI, Section 24, and

b. Article VI, Section 26(2)

SUBSTANTIVE ISSUES

1. Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:

a. Article VI, Section 28(1), and

b. Article VI, Section 28(2)

2. Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:

a. Article VI, Section 28(1), and

b. Article III, Section 1

RULING OF THE COURT

As a prelude, the Court deems it apt to restate the general principles and concepts of value-added
tax (VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its nature.

The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of
goods or properties and services.8 Being an indirect tax on expenditure, the seller of goods or
services may pass on the amount of tax paid to the buyer,9 with the seller acting merely as a tax
collector.10 The burden of VAT is intended to fall on the immediate buyers and ultimately, the end-
consumers.

In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it
engages in, without transferring the burden to someone else.11 Examples are individual and
corporate income taxes, transfer taxes, and residence taxes.12

In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a
different mode. Prior to 1978, the system was a single-stage tax computed under the "cost deduction
method" and was payable only by the original sellers. The single-stage system was subsequently
modified, and a mixture of the "cost deduction method" and "tax credit method" was used to
determine the value-added tax payable.13 Under the "tax credit method," an entity can credit against
or subtract from the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and
imports.14

It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the
VAT system was rationalized by imposing a multi-stage tax rate of 0% or 10% on all sales using the
"tax credit method."15
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law,16 R.A. No. 8241 or the
Improved VAT Law,17 R.A. No. 8424 or the Tax Reform Act of 1997,18 and finally, the presently
beleaguered R.A. No. 9337, also referred to by respondents as the VAT Reform Act.

The Court will now discuss the issues in logical sequence.

PROCEDURAL ISSUE

I.

Whether R.A. No. 9337 violates the following provisions of the Constitution:

a. Article VI, Section 24, and

b. Article VI, Section 26(2)

A. The Bicameral Conference Committee

Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference Committee
exceeded its authority by:

1) Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No. 9337;

2) Deleting entirely the no pass-on provisions found in both the House and Senate bills;

3) Inserting the provision imposing a 70% limit on the amount of input tax to be credited against the
output tax; and

4) Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes
in addition to the value-added tax.

Petitioners now beseech the Court to define the powers of the Bicameral Conference Committee.

It should be borne in mind that the power of internal regulation and discipline are intrinsic in any
legislative body for, as unerringly elucidated by Justice Story, "[i]f the power did not exist, it would
be utterly impracticable to transact the business of the nation, either at all, or at least with
decency, deliberation, and order."19Thus, Article VI, Section 16 (3) of the Constitution provides that
"each House may determine the rules of its proceedings." Pursuant to this inherent constitutional
power to promulgate and implement its own rules of procedure, the respective rules of each house
of Congress provided for the creation of a Bicameral Conference Committee.

Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as follows:

Sec. 88. Conference Committee. – In the event that the House does not agree with the Senate on
the amendment to any bill or joint resolution, the differences may be settled by the conference
committees of both chambers.

In resolving the differences with the Senate, the House panel shall, as much as possible, adhere to
and support the House Bill. If the differences with the Senate are so substantial that they materially
impair the House Bill, the panel shall report such fact to the House for the latter’s appropriate action.
Sec. 89. Conference Committee Reports. – . . . Each report shall contain a detailed, sufficiently
explicit statement of the changes in or amendments to the subject measure.

...

The Chairman of the House panel may be interpellated on the Conference Committee Report prior
to the voting thereon. The House shall vote on the Conference Committee Report in the same
manner and procedure as it votes on a bill on third and final reading.

Rule XII, Section 35 of the Rules of the Senate states:

Sec. 35. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten (10) days after their composition. The President shall
designate the members of the Senate Panel in the conference committee with the approval of the
Senate.

Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in, or amendments to the subject measure, and shall be signed by a majority of the
members of each House panel, voting separately.

A comparative presentation of the conflicting House and Senate provisions and a reconciled version
thereof with the explanatory statement of the conference committee shall be attached to the report.

...

The creation of such conference committee was apparently in response to a problem, not addressed
by any constitutional provision, where the two houses of Congress find themselves in disagreement
over changes or amendments introduced by the other house in a legislative bill. Given that one of
the most basic powers of the legislative branch is to formulate and implement its own rules of
proceedings and to discipline its members, may the Court then delve into the details of how
Congress complies with its internal rules or how it conducts its business of passing legislation? Note
that in the present petitions, the issue is not whether provisions of the rules of both houses creating
the bicameral conference committee are unconstitutional, but whether the bicameral conference
committee has strictly complied with the rules of both houses, thereby remaining within the
jurisdiction conferred upon it by Congress.

In the recent case of Fariñas vs. The Executive Secretary,20 the Court En
Banc, unanimously reiterated and emphasized its adherence to the "enrolled bill doctrine," thus,
declining therein petitioners’ plea for the Court to go behind the enrolled copy of the bill. Assailed in
said case was Congress’s creation of two sets of bicameral conference committees, the lack of
records of said committees’ proceedings, the alleged violation of said committees of the rules of both
houses, and the disappearance or deletion of one of the provisions in the compromise bill submitted
by the bicameral conference committee. It was argued that such irregularities in the passage of the
law nullified R.A. No. 9006, or the Fair Election Act.

Striking down such argument, the Court held thus:

Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are
conclusive of its due enactment. A review of cases reveals the Court’s consistent adherence to the
rule. The Court finds no reason to deviate from the salutary rule in this case where the
irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g.,
creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not
the proper forum for the enforcement of these internal rules of Congress, whether House or
Senate. Parliamentary rules are merely procedural and with their observance the courts have
no concern. Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must
be resolved in its favor. The Court reiterates its ruling in Arroyo vs. De Venecia, viz.:

But the cases, both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to comply
with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. In Osmeña v. Pendatun, it was held: "At any rate,
courts have declared that ‘the rules adopted by deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body adopting them.’And it has been said that
"Parliamentary rules are merely procedural, and with their observance, the courts have no
concern. They may be waived or disregarded by the legislative body." Consequently, "mere
failure to conform to parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members have agreed to a particular
measure."21 (Emphasis supplied)

The foregoing declaration is exactly in point with the present cases, where petitioners allege
irregularities committed by the conference committee in introducing changes or deleting provisions in
the House and Senate bills. Akin to the Fariñas case,22 the present petitions also raise an issue
regarding the actions taken by the conference committee on matters regarding Congress’
compliance with its own internal rules. As stated earlier, one of the most basic and inherent power of
the legislature is the power to formulate rules for its proceedings and the discipline of its members.
Congress is the best judge of how it should conduct its own business expeditiously and in the most
orderly manner. It is also the sole

concern of Congress to instill discipline among the members of its conference committee if it
believes that said members violated any of its rules of proceedings. Even the expanded jurisdiction
of this Court cannot apply to questions regarding only the internal operation of Congress, thus, the
Court is wont to deny a review of the internal proceedings of a co-equal branch of government.

Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of
Finance,23the Court already made the pronouncement that "[i]f a change is desired in the practice
[of the Bicameral Conference Committee] it must be sought in Congress since this question
is not covered by any constitutional provision but is only an internal rule of each house." 24 To
date, Congress has not seen it fit to make such changes adverted to by the Court. It seems,
therefore, that Congress finds the practices of the bicameral conference committee to be very useful
for purposes of prompt and efficient legislative action.

Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the
bicameral conference committees, the Court deems it necessary to dwell on the issue. The Court
observes that there was a necessity for a conference committee because a comparison of the
provisions of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the other,
reveals that there were indeed disagreements. As pointed out in the petitions, said disagreements
were as follows:

House Bill No. 3555 House Bill No.3705 Senate Bill No. 1950
With regard to "Stand-By Authority" in favor of President
Provides for 12% VAT on Provides for 12% VAT in general Provides for a single rate of
every sale of goods or
properties (amending Sec.
106 of NIRC); 12% VAT on
importation of goods
(amending Sec. 107 of
NIRC); and 12% VAT on
sale of services and use or
lease of properties
(amending Sec. 108 of
NIRC)
With regard to the "no pass-on" provision
No similar provision
With regard to 70% limit on input tax credit
Provides that the input tax
credit for capital goods on
which a VAT has been paid
shall be equally distributed
over 5 years or the
depreciable life of such
capital goods; the input tax
credit for goods and services
other than capital goods
shall not exceed 5% of the
total amount of such goods
and services; and for
persons engaged in retail
trading of goods, the
allowable input tax credit
shall not exceed 11% of the
total amount of goods
purchased.
on sales of goods or properties
and reduced rates for sale of
certain locally manufactured
goods and petroleum products
and raw materials to be used in
the manufacture thereof
(amending Sec. 106 of NIRC);
12% VAT on importation of
goods and reduced rates for
certain imported products
including petroleum products
(amending Sec. 107 of NIRC);
and 12% VAT on sale of
services and use or lease of
properties and a reduced rate for
certain services including power
generation (amending Sec. 108
of NIRC)
Provides that the VAT imposed
on power generation and on the
sale of petroleum products shall electricity by generation
be absorbed by generation
companies or sellers,
respectively, and shall not be
passed on to consumers
No similar provision
10% VAT on sale of goods or
properties (amending Sec.
106 of NIRC), 10% VAT on
sale of services including sale
of electricity by generation
companies, transmission and
distribution companies, and
use or lease of properties
(amending Sec. 108 of NIRC)
Provides that the VAT
imposed on sales of
companies and services of
transmission companies and
distribution companies, as
well as those of franchise
grantees of electric utilities
shall not apply to residential
end-users. VAT shall be
absorbed by generation,
transmission, and distribution
companies.
Provides that the input tax
credit for capital goods on
which a VAT has been paid
shall be equally distributed
over 5 years or the
depreciable life of such
capital goods; the input tax
credit for goods and services
other than capital goods shall
not exceed 90% of the output
VAT.
 With regard to amendments to be made to NIRC provisions regarding income and excise
taxes
No similar provision No similar provision Provided for amendments to
several NIRC provisions
regarding corporate income,
percentage, franchise and
excise taxes

The disagreements between the provisions in the House bills and the Senate bill were with regard to
(1) what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers, as proposed in the
Senate bill, or both the VAT imposed on electricity generation, transmission and distribution
companies and the VAT imposed on sale of petroleum products should not be passed on to
consumers, as proposed in the House bill; (3) in what manner input tax credits should be limited; (4)
and whether the NIRC provisions on corporate income taxes, percentage, franchise and excise
taxes should be amended.

There being differences and/or disagreements on the foregoing provisions of the House and Senate
bills, the Bicameral Conference Committee was mandated by the rules of both houses of Congress
to act on the same by settling said differences and/or disagreements. The Bicameral Conference
Committee acted on the disagreeing provisions by making the following changes:

1. With regard to the disagreement on the rate of VAT to be imposed, it would appear from the
Conference Committee Report that the Bicameral Conference Committee tried to bridge the gap in
the difference between the 10% VAT rate proposed by the Senate, and the various rates with 12%
as the highest VAT rate proposed by the House, by striking a compromise whereby the present 10%
VAT rate would be retained until certain conditions arise, i.e., the value-added tax collection as a
percentage of gross domestic product (GDP) of the previous year exceeds 2 4/5%, or National
Government deficit as a percentage of GDP of the previous year exceeds 1½%, when the President,
upon recommendation of the Secretary of Finance shall raise the rate of VAT to 12% effective
January 1, 2006.

2. With regard to the disagreement on whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers or whether both the
VAT imposed on electricity generation, transmission and distribution companies and the VAT
imposed on sale of petroleum products may be passed on to consumers, the Bicameral Conference
Committee chose to settle such disagreement by altogether deleting from its Report any no pass-
on provision.

3. With regard to the disagreement on whether input tax credits should be limited or not, the
Bicameral Conference Committee decided to adopt the position of the House by putting a limitation
on the amount of input tax that may be credited against the output tax, although it crafted its own
language as to the amount of the limitation on input tax credits and the manner of computing the
same by providing thus:

(A) Creditable Input Tax. – . . .

...

Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds one million Pesos
(₱1,000,000.00): PROVIDED, however, that if the estimated useful life of the capital good is less
than five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such
shorter period: . . .

(B) Excess Output or Input Tax. – If at the end of any taxable quarter the output tax exceeds the
input tax, the excess shall be paid by the VAT-registered person. If the input tax exceeds the output
tax, the excess shall be carried over to the succeeding quarter or quarters: PROVIDED that the input
tax inclusive of input VAT carried over from the previous quarter that may be credited in every
quarter shall not exceed seventy percent (70%) of the output VAT: PROVIDED, HOWEVER, THAT
any input tax attributable to zero-rated sales by a VAT-registered person may at his option be
refunded or credited against other internal revenue taxes, . . .

4. With regard to the amendments to other provisions of the NIRC on corporate income tax,
franchise, percentage and excise taxes, the conference committee decided to include such
amendments and basically adopted the provisions found in Senate Bill No. 1950, with some changes
as to the rate of the tax to be imposed.

Under the provisions of both the Rules of the House of Representatives and Senate Rules, the
Bicameral Conference Committee is mandated to settle the differences between the disagreeing
provisions in the House bill and the Senate bill. The term "settle" is synonymous to "reconcile" and
"harmonize."25 To reconcile or harmonize disagreeing provisions, the Bicameral Conference
Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b)
decide that neither provisions in the House bill or the provisions in the Senate bill would

be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the
disagreeing provisions.

In the present case, the changes introduced by the Bicameral Conference Committee on
disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions for it
did not inject any idea or intent that is wholly foreign to the subject embraced by the original
provisions.

The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted by
the Senate is retained until such time that certain conditions arise when the 12% VAT wanted by the
House shall be imposed, appears to be a compromise to try to bridge the difference in the rate of
VAT proposed by the two houses of Congress. Nevertheless, such compromise is still totally within
the subject of what rate of VAT should be imposed on taxpayers.

The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the
Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate
Panel, explained the reason for deleting the no pass-on provision in this wise:

. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that no
sector should be a beneficiary of legislative grace, neither should any sector be discriminated on.
The VAT is an indirect tax. It is a pass on-tax. And let’s keep it plain and simple. Let’s not confuse
the bill and put a no pass-on provision. Two-thirds of the world have a VAT system and in this two-
thirds of the globe, I have yet to see a VAT with a no pass-though provision. So, the thinking of the
Senate is basically simple, let’s keep the VAT simple.26 (Emphasis supplied)

Rep. Teodoro Locsin further made the manifestation that the no pass-on provision "never really
enjoyed the support of either House."27
With regard to the amount of input tax to be credited against output tax, the Bicameral Conference
Committee came to a compromise on the percentage rate of the limitation or cap on such input tax
credit, but again, the change introduced by the Bicameral Conference Committee was totally within
the intent of both houses to put a cap on input tax that may be

credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to "plug a glaring loophole in the tax policy and
administration by creating vital restrictions on the claiming of input VAT tax credits . . ." and "[b]y
introducing limitations on the claiming of tax credit, we are capping a major leakage that has placed
our collection efforts at an apparent disadvantage."28

As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in
Senate Bill No. 1950, since said provisions were among those referred to it, the conference
committee had to act on the same and it basically adopted the version of the Senate.

Thus, all the changes or modifications made by the Bicameral Conference Committee were germane
to subjects of the provisions referred

to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee. In
the earlier cases of Philippine Judges Association vs. Prado29 and Tolentino vs. Secretary of
Finance,30 the Court recognized the long-standing legislative practice of giving said conference
committee ample latitude for compromising differences between the Senate and the House. Thus, in
the Tolentino case, it was held that:

. . . it is within the power of a conference committee to include in its report an entirely new provision
that is not found either in the House bill or in the Senate bill. If the committee can propose an
amendment consisting of one or two provisions, there is no reason why it cannot propose several
provisions, collectively considered as an "amendment in the nature of a substitute," so long as such
amendment is germane to the subject of the bills before the committee. After all, its report was not
final but needed the approval of both houses of Congress to become valid as an act of the legislative
department. The charge that in this case the Conference Committee acted as a third legislative
chamber is thus without any basis.31 (Emphasis supplied)

B. R.A. No. 9337 Does Not Violate Article VI, Section 26(2) of the Constitution on the "No-
Amendment Rule"

Article VI, Sec. 26 (2) of the Constitution, states:

No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment
to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall
be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.

Petitioners’ argument that the practice where a bicameral conference committee is allowed to add or
delete provisions in the House bill and the Senate bill after these had passed three readings is in
effect a circumvention of the "no amendment rule" (Sec. 26 (2), Art. VI of the 1987 Constitution), fails
to convince the Court to deviate from its ruling in the Tolentino case that:
Nor is there any reason for requiring that the Committee’s Report in these cases must have
undergone three readings in each of the two houses. If that be the case, there would be no end to
negotiation since each house may seek modification of the compromise bill. . . .

Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the first
time in either house of Congress, not to the conference committee report.32 (Emphasis
supplied)

The Court reiterates here that the "no-amendment rule" refers only to the procedure to be
followed by each house of Congress with regard to bills initiated in each of said respective
houses, before said bill is transmitted to the other house for its concurrence or amendment.
Verily, to construe said provision in a way as to proscribe any further changes to a bill after one
house has voted on it would lead to absurdity as this would mean that the other house of Congress
would be deprived of its constitutional power to amend or introduce changes to said bill. Thus, Art.
VI, Sec. 26 (2) of the Constitution cannot be taken to mean that the introduction by the Bicameral
Conference Committee of amendments and modifications to disagreeing provisions in bills that have
been acted upon by both houses of Congress is prohibited.

C. R.A. No. 9337 Does Not Violate Article VI, Section 24 of the Constitution on Exclusive Origination
of Revenue Bills

Coming to the issue of the validity of the amendments made regarding the NIRC provisions on
corporate income taxes and percentage, excise taxes. Petitioners refer to the following provisions, to
wit:

Section 27 Rates of Income Tax on Domestic Corporation

28(A)(1) Tax on Resident Foreign Corporation
28(B)(1) Inter-corporate Dividends
34(B)(1) Inter-corporate Dividends
116 Tax on Persons Exempt from VAT
117 Percentage Tax on domestic carriers and keepers of Garage
119 Tax on franchises
121 Tax on banks and Non-Bank Financial Intermediaries
148 Excise Tax on manufactured oils and other fuels
151 Excise Tax on mineral products
236 Registration requirements
237 Issuance of receipts or sales or commercial invoices
288 Disposition of Incremental Revenue

Petitioners claim that the amendments to these provisions of the NIRC did not at all originate from
the House. They aver that House Bill No. 3555 proposed amendments only regarding Sections 106,
107, 108, 110 and 114 of the NIRC, while House Bill No. 3705 proposed amendments only to
Sections 106, 107,108, 109, 110 and 111 of the NIRC; thus, the other sections of the NIRC which
the Senate amended but which amendments were not found in the House bills are not intended to
be amended by the House of Representatives. Hence, they argue that since the proposed
amendments did not originate from the House, such amendments are a violation of Article VI,
Section 24 of the Constitution.

The argument does not hold water.

Article VI, Section 24 of the Constitution reads:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives but the
Senate may propose or concur with amendments.

In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that
initiated the move for amending provisions of the NIRC dealing mainly with the value-added tax.
Upon transmittal of said House bills to the Senate, the Senate came out with Senate Bill No. 1950
proposing amendments not only to NIRC provisions on the value-added tax but also amendments to
NIRC provisions on other kinds of taxes. Is the introduction by the Senate of provisions not dealing
directly with the value- added tax, which is the only kind of tax being amended in the House bills, still
within the purview of the constitutional provision authorizing the Senate to propose or concur with
amendments to a revenue bill that originated from the House?

The foregoing question had been squarely answered in the Tolentino case, wherein the Court held,
thus:

. . . To begin with, it is not the law – but the revenue bill – which is required by the Constitution to
"originate exclusively" in the House of Representatives. It is important to emphasize this, because a
bill originating in the House may undergo such extensive changes in the Senate that the result may
be a rewriting of the whole. . . . At this point, what is important to note is that, as a result of the
Senate action, a distinct bill may be produced. To insist that a revenue statute – and not only the
bill which initiated the legislative process culminating in the enactment of the law – must
substantially be the same as the House bill would be to deny the Senate’s power not only to
"concur with amendments" but also to "propose amendments." It would be to violate the
coequality of legislative power of the two houses of Congress and in fact make the House superior to
the Senate.

…Given, then, the power of the Senate to propose amendments, the Senate can propose its
own version even with respect to bills which are required by the Constitution to originate in
the House.

...

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills,
bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and
problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws.33 (Emphasis supplied)

Since there is no question that the revenue bill exclusively originated in the House of
Representatives, the Senate was acting within its

constitutional power to introduce amendments to the House bill when it included provisions in
Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes.
Verily, Article VI, Section 24 of the Constitution does not contain any prohibition or limitation on the
extent of the amendments that may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not been
touched in the House bills are still in furtherance of the intent of the House in initiating the subject
revenue bills. The Explanatory Note of House Bill No. 1468, the very first House bill introduced on
the floor, which was later substituted by House Bill No. 3555, stated:

One of the challenges faced by the present administration is the urgent and daunting task of solving
the country’s serious financial problems. To do this, government expenditures must be strictly
monitored and controlled and revenues must be significantly increased. This may be easier said
than done, but our fiscal authorities are still optimistic the government will be operating on a
balanced budget by the year 2009. In fact, several measures that will result to significant expenditure
savings have been identified by the administration. It is supported with a credible package of
revenue measures that include measures to improve tax administration and control the
leakages in revenues from income taxes and the value-added tax (VAT). (Emphasis supplied)

Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:

In the budget message of our President in the year 2005, she reiterated that we all acknowledged
that on top of our agenda must be the restoration of the health of our fiscal system.

In order to considerably lower the consolidated public sector deficit and eventually achieve a
balanced budget by the year 2009, we need to seize windows of opportunities which might
seem poignant in the beginning, but in the long run prove effective and beneficial to the
overall status of our economy. One such opportunity is a review of existing tax rates,
evaluating the relevance given our present conditions.34(Emphasis supplied)

Notably therefore, the main purpose of the bills emanating from the House of Representatives is to
bring in sizeable revenues for the government

to supplement our country’s serious financial problems, and improve tax administration and control
of the leakages in revenues from income taxes and value-added taxes. As these house bills were
transmitted to the Senate, the latter, approaching the measures from the point of national
perspective, can introduce amendments within the purposes of those bills. It can provide for ways
that would soften the impact of the VAT measure on the consumer, i.e., by distributing the burden
across all sectors instead of putting it entirely on the shoulders of the consumers. The sponsorship
speech of Sen. Ralph Recto on why the provisions on income tax on corporation were included is
worth quoting:

All in all, the proposal of the Senate Committee on Ways and Means will raise ₱64.3 billion in
additional revenues annually even while by mitigating prices of power, services and petroleum
products.

However, not all of this will be wrung out of VAT. In fact, only ₱48.7 billion amount is from the VAT
on twelve goods and services. The rest of the tab – ₱10.5 billion- will be picked by corporations.

What we therefore prescribe is a burden sharing between corporate Philippines and the consumer.
Why should the latter bear all the pain? Why should the fiscal salvation be only on the burden of the
consumer?

The corporate world’s equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise ₱10.5 billion a year. After that, the rate will slide back,
not to its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal
medicine will have an expiry date.

For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the tunnel,
this government will keep on making the tunnel long.

The responsibility will not rest solely on the weary shoulders of the small man. Big business will be
there to share the burden.35

As the Court has said, the Senate can propose amendments and in fact, the amendments made on
provisions in the tax on income of corporations are germane to the purpose of the house bills which
is to raise revenues for the government.

Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the
reforms to the VAT system, as these sections would cushion the effects of VAT on consumers.
Considering that certain goods and services which were subject to percentage tax and excise tax
would no longer be VAT-exempt, the consumer would be burdened more as they would be paying
the VAT in addition to these taxes. Thus, there is a need to amend these sections to soften the
impact of VAT. Again, in his sponsorship speech, Sen. Recto said:

However, for power plants that run on oil, we will reduce to zero the present excise tax on bunker
fuel, to lessen the effect of a VAT on this product.

For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.

And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the
VAT chain, we will however bring down the excise tax on socially sensitive products such as diesel,
bunker, fuel and kerosene.

...

What do all these exercises point to? These are not contortions of giving to the left hand what was
taken from the right. Rather, these sprang from our concern of softening the impact of VAT, so that
the people can cushion the blow of higher prices they will have to pay as a result of VAT.36

The other sections amended by the Senate pertained to matters of tax administration which are
necessary for the implementation of the changes in the VAT system.

To reiterate, the sections introduced by the Senate are germane to the subject matter and purposes
of the house bills, which is to supplement our country’s fiscal deficit, among others. Thus, the Senate
acted within its power to propose those amendments.

SUBSTANTIVE ISSUES

I.

Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:
a. Article VI, Section 28(1), and

b. Article VI, Section 28(2)

A. No Undue Delegation of Legislative Power

Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in
common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC giving the President the stand-by authority to raise the VAT rate from 10%
to 12% when a certain condition is met, constitutes undue delegation of the legislative power to tax.

The assailed provisions read as follows:

SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:

SEC. 106. Value-Added Tax on Sale of Goods or Properties. –

(A) Rate and Base of Tax. – There shall be levied, assessed and collected on every sale, barter or
exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross
selling price or gross value in money of the goods or properties sold, bartered or exchanged, such
tax to be paid by the seller or transferor:provided, that the President, upon the recommendation
of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax
to twelve percent (12%), after any of the following conditions has been satisfied.

(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or

(ii) national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).

SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as follows:

SEC. 107. Value-Added Tax on Importation of Goods. –

(A) In General. – There shall be levied, assessed and collected on every importation of goods a
value-added tax equivalent to ten percent (10%) based on the total value used by the Bureau of
Customs in determining tariff and customs duties, plus customs duties, excise taxes, if any, and
other charges, such tax to be paid by the importer prior to the release of such goods from customs
custody: Provided, That where the customs duties are determined on the basis of the quantity or
volume of the goods, the value-added tax shall be based on the landed cost plus excise taxes, if
any: provided, further, that the President, upon the recommendation of the Secretary of
Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent
(12%) after any of the following conditions has been satisfied.

(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or

(ii) national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).

SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties –

(A) Rate and Base of Tax. – There shall be levied, assessed and collected, a value-added tax
equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of
services: provided, that the President, upon the recommendation of the Secretary of Finance,
shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%),
after any of the following conditions has been satisfied.

(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or

(ii) national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%). (Emphasis supplied)

Petitioners allege that the grant of the stand-by authority to the President to increase the VAT rate is
a virtual abdication by Congress of its exclusive power to tax because such delegation is not within
the purview of Section 28 (2), Article VI of the Constitution, which provides:

The Congress may, by law, authorize the President to fix within specified limits, and may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the government.

They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties as
well as on the sale or exchange of services, which cannot be included within the purview of tariffs
under the exempted delegation as the latter refers to customs duties, tolls or tribute payable upon
merchandise to the government and usually imposed on goods or merchandise imported or
exported.

Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President the
legislative power to tax is contrary to republicanism. They insist that accountability, responsibility and
transparency should dictate the actions of Congress and they should not pass to the President the
decision to impose taxes. They also argue that the law also effectively nullified the President’s power
of control, which includes the authority to set aside and nullify the acts of her subordinates like the
Secretary of Finance, by mandating the fixing of the tax rate by the President upon the
recommendation of the Secretary of Finance.

Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or create
the conditions provided by the law to bring about either or both the conditions precedent.

On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the
imposition of the 12% rate would be subject to the whim of the Secretary of Finance, an unelected
bureaucrat, contrary to the principle of no taxation without representation. They submit that the
Secretary of Finance is not mandated to give a favorable recommendation and he may not even give
his recommendation. Moreover, they allege that no guiding standards are provided in the law on
what basis and as to how he will make his recommendation. They claim, nonetheless, that any
recommendation of the Secretary of Finance can easily be brushed aside by the President since the
former is a mere alter ego of the latter, such that, ultimately, it is the President who decides whether
to impose the increased tax rate or not.

A brief discourse on the principle of non-delegation of powers is instructive.

The principle of separation of powers ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.37 A logical

corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as

expressed in the Latin maxim: potestas delegata non delegari potest which means "what has been
delegated, cannot be delegated."38 This doctrine is based on the ethical principle that such as
delegated power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another.39

With respect to the Legislature, Section 1 of Article VI of the Constitution provides that "the
Legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives." The powers which Congress is prohibited from delegating are
those which are strictly, or inherently and exclusively, legislative. Purely legislative power, which can
never be delegated, has been described as theauthority to make a complete law – complete as
to the time when it shall take effect and as to whom it shall be applicable – and to determine
the expediency of its enactment.40 Thus, the rule is that in order that a court may be justified in
holding a statute unconstitutional as a delegation of legislative power, it must appear that the power
involved is purely legislative in nature – that is, one appertaining exclusively to the legislative
department. It is the nature of the power, and not the liability of its use or the manner of its exercise,
which determines the validity of its delegation.

Nonetheless, the general rule barring delegation of legislative powers is subject to the following
recognized limitations or exceptions:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.

In every case of permissible delegation, there must be a showing that the delegation itself is valid. It
is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate;41 and (b) fixes a standard — the limits of which are sufficiently
determinate and determinable — to which the delegate must conform in the performance of his
functions.42 A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which
the legislative command is to be effected.43 Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.44

In People vs. Vera,45 the Court, through eminent Justice Jose P. Laurel, expounded on the concept
and extent of delegation of power in this wise:

In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature.

...

‘The true distinction’, says Judge Ranney, ‘is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring an authority
or discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.’

...

It is contended, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community. In Wayman
vs. Southard, the Supreme Court of the United States ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a
power which may be delegated. There is nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age, the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United States in the following language — speaking
of declaration of legislative power to administrative agencies: The principle which permits the
legislature to provide that the administrative agent may determine when the circumstances
are such as require the application of a law is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it is its duty to do,
determines that, under given circumstances, certain executive or administrative action is to
be taken, and that, under other circumstances, different or no action at all is to be taken.
What is thus left to the administrative official is not the legislative determination of what
public policy demands, but simply the ascertainment of what the facts of the case require to
be done according to the terms of the law by which he is governed. The efficiency of an Act
as a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be left to such
agencies as it may designate. The legislature, then, may provide that a law shall take effect
upon the happening of future specified contingencies leaving to some other person or body
the power to determine when the specified contingency has arisen. (Emphasis supplied).46

In Edu vs. Ericta,47 the Court reiterated:

What cannot be delegated is the authority under the Constitution to make laws and to alter and
repeal them; the test is the completeness of the statute in all its terms and provisions when it leaves
the hands of the legislature. To determine whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the measure enacted. The
legislative does not abdicate its functions when it describes what job must be done, who is to
do it, and what is the scope of his authority. For a complex economy, that may be the only way in
which the legislative process can go forward. A distinction has rightfully been made between
delegation of power to make the laws which necessarily involves a discretion as to what it
shall be, which constitutionally may not be done, and delegation of authority or discretion as
to its execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability. (Emphasis supplied).48

Clearly, the legislature may delegate to executive officers or bodies the power to determine certain
facts or conditions, or the happening of contingencies, on which the operation of a statute is, by its
terms, made to depend, but the legislature must prescribe sufficient standards, policies or limitations
on their authority.49 While the power to tax cannot be delegated to executive agencies, details as to
the enforcement and administration of an exercise of such power may be left to them, including the
power to determine the existence of facts on which its operation depends.50

The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty of
correlating information and making recommendations is the kind of subsidiary activity which the
legislature may perform through its members, or which it may delegate to others to perform.
Intelligent legislation on the complicated problems of modern society is impossible in the absence of
accurate information on the part of the legislators, and any reasonable method of securing such
information is proper.51 The Constitution as a continuously operative charter of government does not
require that Congress find for itself

every fact upon which it desires to base legislative action or that it make for itself detailed
determinations which it has declared to be prerequisite to application of legislative policy to particular
facts and circumstances impossible for Congress itself properly to investigate.52

In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5
and 6 which reads as follows:

That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions
has been satisfied:

(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or

(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).

The case before the Court is not a delegation of legislative power. It is simply a delegation of
ascertainment of facts upon which enforcement and administration of the increase rate under the law
is contingent. The legislature has made the operation of the 12% rate effective January 1, 2006,
contingent upon a specified fact or condition. It leaves the entire operation or non-operation of the
12% rate upon factual matters outside of the control of the executive.

No discretion would be exercised by the President. Highlighting the absence of discretion is the fact
that the wordshall is used in the common proviso. The use of the word shall connotes a mandatory
order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of
discretion.53 Where the law is clear and unambiguous, it must be taken to mean exactly what it says,
and courts have no choice but to see to it that the mandate is obeyed.54

Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the
existence of any of the conditions specified by Congress. This is a duty which cannot be evaded by
the President. Inasmuch as the law specifically uses the word shall, the exercise of discretion by the
President does not come into play. It is a clear directive to impose the 12% VAT rate when the
specified conditions are present. The time of taking into effect of the 12% VAT rate is based on the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than the legislature itself.

The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that the
law effectively nullified the President’s power of control over the Secretary of Finance by mandating
the fixing of the tax rate by the President upon the recommendation of the Secretary of Finance. The
Court cannot also subscribe to the position of petitioners

Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase "upon
the recommendation of the Secretary of Finance." Neither does the Court find persuasive the
submission of petitioners Escudero, et al. that any recommendation by the Secretary of Finance can
easily be brushed aside by the President since the former is a mere alter ego of the latter.

When one speaks of the Secretary of Finance as the alter ego of the President, it simply means that
as head of the Department of Finance he is the assistant and agent of the Chief Executive. The
multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such departments, such as the
Department of Finance, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief
Executive. The Secretary of Finance, as such, occupies a political position and holds office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom
confidence" and, in the language of Attorney-General Cushing, is "subject to the direction of the
President."55

In the present case, in making his recommendation to the President on the existence of either of the
two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her
subordinate. In such instance, he is not subject to the power of control and direction of the President.
He is acting as the agent of the legislative department, to determine and declare the event upon
which its expressed will is to take effect.56The Secretary of Finance becomes the means or tool by
which legislative policy is determined and implemented, considering that he possesses all the
facilities to gather data and information and has a much broader perspective to properly evaluate
them. His function is to gather and collate statistical data and other pertinent information and verify if
any of the two conditions laid out by Congress is present. His personality in such instance is in
reality but a projection of that of Congress. Thus, being the agent of Congress and not of the
President, the President cannot alter or modify or nullify, or set aside the findings of the Secretary of
Finance and to substitute the judgment of the former for that of the latter.

Congress simply granted the Secretary of Finance the authority to ascertain the existence of a fact,
namely, whether by December 31, 2005, the value-added tax collection as a percentage of Gross
Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (24/5%) or the
national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1½%). If either of these two instances has occurred, the Secretary of Finance, by legislative
mandate, must submit such information to the President. Then the 12% VAT rate must be imposed
by the President effective January 1, 2006. There is no undue delegation of legislative power but
only of the discretion as to the execution of a law. This is constitutionally
permissible.57 Congress does not abdicate its functions or unduly delegate power when it describes
what job must be done, who must do it, and what is the scope of his authority; in our complex
economy that is frequently the only way in which the legislative process can go forward.58

As to the argument of petitioners ABAKADA GURO Party List, et al. that delegating to the President
the legislative power to tax is contrary to the principle of republicanism, the same deserves scant
consideration. Congress did not delegate the power to tax but the mere implementation of the law.
The intent and will to increase the VAT rate to 12% came from Congress and the task of the
President is to simply execute the legislative policy. That Congress chose to do so in such a manner
is not within the province of the Court to inquire into, its task being to interpret the law.59

The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause,
influence or create the conditions to bring about either or both the conditions precedent does not
deserve any merit as this argument is highly speculative. The Court does not rule on allegations
which are manifestly conjectural, as these may not exist at all. The Court deals with facts, not
fancies; on realities, not appearances. When the Court acts on appearances instead of realities,
justice and law will be short-lived.

B. The 12% Increase VAT Rate Does Not Impose an Unfair and Unnecessary Additional Tax Burden

Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and
additional tax burden on the people. Petitioners also argue that the 12% increase, dependent on any
of the 2 conditions set forth in the contested provisions, is ambiguous because it does not state if the
VAT rate would be returned to the original 10% if the rates are no longer satisfied. Petitioners also
argue that such rate is unfair and unreasonable, as the people are unsure of the applicable VAT rate
from year to year.

Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set
forth therein are satisfied, the President shall increase the VAT rate to 12%. The provisions of the
law are clear. It does not provide for a return to the 10% rate nor does it empower the President to
so revert if, after the rate is increased to 12%, the VAT collection goes below the 24/5 of the GDP of
the previous year or that the national government deficit as a percentage of GDP of the previous
year does not exceed 1½%.

Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations

be introduced where none is provided for. Rewriting the law is a forbidden ground that only
Congress may tread upon.60

Thus, in the absence of any provision providing for a return to the 10% rate, which in this case the
Court finds none, petitioners’ argument is, at best, purely speculative. There is no basis for
petitioners’ fear of a fluctuating VAT rate because the law itself does not provide that the rate should
go back to 10% if the conditions provided in Sections 4, 5 and 6 are no longer present. The rule is
that where the provision of the law is clear and unambiguous, so that there is no occasion for the
court's seeking the legislative intent, the law must be taken as it is, devoid of judicial addition or
subtraction.61

Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to the
President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should be
based on fiscal adequacy.

Petitioners obviously overlooked that increase in VAT collection is not the only condition. There is
another condition, i.e., the national government deficit as a percentage of GDP of the previous year
exceeds one and one-half percent (1 ½%).

Respondents explained the philosophy behind these alternative conditions:

1. VAT/GDP Ratio > 2.8%

The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP is
less than 2.8%, it means that government has weak or no capability of implementing the VAT or that
VAT is not effective in the function of the tax collection. Therefore, there is no value to increase it to
12% because such action will also be ineffectual.

2. Nat’l Gov’t Deficit/GDP >1.5%

The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition of
government has reached a relatively sound position or is towards the direction of a balanced budget
position. Therefore, there is no need to increase the VAT rate since the fiscal house is in a relatively
healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a need to increase
the VAT rate.62

That the first condition amounts to an incentive to the President to increase the VAT collection does
not render it unconstitutional so long as there is a public purpose for which the law was passed,
which in this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need for a raise in
revenue.

The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated by
Adam Smith in his Canons of Taxation (1776), as:

IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the
people as little as possible over and above what it brings into the public treasury of the state.63

It simply means that sources of revenues must be adequate to meet government expenditures and
their variations.64

The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe. During
the Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly depicted the
country’s gloomy state of economic affairs, thus:

First, let me explain the position that the Philippines finds itself in right now. We are in a position
where 90 percent of our revenue is used for debt service. So, for every peso of revenue that we
currently raise, 90 goes to debt service. That’s interest plus amortization of our debt. So clearly, this
is not a sustainable situation. That’s the first fact.

The second fact is that our debt to GDP level is way out of line compared to other peer countries that
borrow money from that international financial markets. Our debt to GDP is approximately equal to
our GDP. Again, that shows you that this is not a sustainable situation.

The third thing that I’d like to point out is the environment that we are presently operating in is not as
benign as what it used to be the past five years.

What do I mean by that?

In the past five years, we’ve been lucky because we were operating in a period of basically global
growth and low interest rates. The past few months, we have seen an inching up, in fact, a rapid
increase in the interest rates in the leading economies of the world. And, therefore, our ability to
borrow at reasonable prices is going to be challenged. In fact, ultimately, the question is our ability to
access the financial markets.
When the President made her speech in July last year, the environment was not as bad as it is now,
at least based on the forecast of most financial institutions. So, we were assuming that raising 80
billion would put us in a position where we can then convince them to improve our ability to borrow at
lower rates. But conditions have changed on us because the interest rates have gone up. In fact, just
within this room, we tried to access the market for a billion dollars because for this year alone, the
Philippines will have to borrow 4 billion dollars. Of that amount, we have borrowed 1.5 billion. We
issued last January a 25-year bond at 9.7 percent cost. We were trying to access last week and the
market was not as favorable and up to now we have not accessed and we might pull back because
the conditions are not very good.

So given this situation, we at the Department of Finance believe that we really need to front-end our
deficit reduction. Because it is deficit that is causing the increase of the debt and we are in what we
call a debt spiral. The more debt you have, the more deficit you have because interest and debt
service eats and eats more of your revenue. We need to get out of this debt spiral. And the only way,
I think, we can get out of this debt spiral is really have a front-end adjustment in our revenue base.65

The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable
catastrophe. Whether the law is indeed sufficient to answer the state’s economic dilemma is not for
the Court to judge. In theFariñas case, the Court refused to consider the various arguments raised
therein that dwelt on the wisdom of Section 14 of R.A. No. 9006 (The Fair Election Act), pronouncing
that:

. . . policy matters are not the concern of the Court. Government policy is within the exclusive
dominion of the political branches of the government. It is not for this Court to look into the wisdom
or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it
is based on sound economic theory, whether it is the best means to achieve the desired results,
whether, in short, the legislative discretion within its prescribed limits should be exercised in a
particular manner are matters for the judgment of the legislature, and the serious conflict of opinions
does not suffice to bring them within the range of judicial cognizance.66

In the same vein, the Court in this case will not dawdle on the purpose of Congress or the executive
policy, given that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency
of legislation."67

II.

Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:

a. Article VI, Section 28(1), and

b. Article III, Section 1

A. Due Process and Equal Protection Clauses

Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No. 9337,
amending Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending Section 114 (C)
of the NIRC are arbitrary, oppressive, excessive and confiscatory. Their argument is premised on
the constitutional right against deprivation of life, liberty of property without due process of law, as
embodied in Article III, Section 1 of the Constitution.
Petitioners also contend that these provisions violate the constitutional guarantee of equal protection
of the law.

The doctrine is that where the due process and equal protection clauses are invoked, considering
that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a showing, the presumption of validity
must prevail.68

Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the
amount of input tax that may be credited against the output tax. It states, in part: "[P]rovided, that the
input tax inclusive of the input VAT carried over from the previous quarter that may be credited in
every quarter shall not exceed seventy percent (70%) of the output VAT: …"

Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax
due from or paid by a VAT-registered person on the importation of goods or local purchase of good
and services, including lease or use of property, in the course of trade or business, from a VAT-
registered person, and Output Tax is the value-added tax due on the sale or lease of taxable goods
or properties or services by any person registered or required to register under the law.

Petitioners claim that the contested sections impose limitations on the amount of input tax that may
be claimed. In effect, a portion of the input tax that has already been paid cannot now be credited
against the output tax.

Petitioners’ argument is not absolute. It assumes that the input tax exceeds 70% of the output tax,
and therefore, the input tax in excess of 70% remains uncredited. However, to the extent that the
input tax is less than 70% of the output tax, then 100% of such input tax is still creditable.

More importantly, the excess input tax, if any, is retained in a business’s books of accounts and
remains creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B), which
provides that "if the input tax exceeds the output tax, the excess shall be carried over to the
succeeding quarter or quarters." In addition, Section 112(B) allows a VAT-registered person to apply
for the issuance of a tax credit certificate or refund for any unused input taxes, to the extent that
such input taxes have not been applied against the output taxes. Such unused input tax may be
used in payment of his other internal revenue taxes.

The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners
exaggeratedly contend. Their analysis of the effect of the 70% limitation is incomplete and one-
sided. It ends at the net effect that there will be unapplied/unutilized inputs VAT for a given quarter. It
does not proceed further to the fact that such unapplied/unutilized input tax may be credited in the
subsequent periods as allowed by the carry-over provision of Section 110(B) or that it may later on
be refunded through a tax credit certificate under Section 112(B).

Therefore, petitioners’ argument must be rejected.

On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the 70%
limitation on the input tax. According to petitioner, the limitation on the creditable input tax in effect
allows VAT-registered establishments to retain a portion of the taxes they collect, which violates the
principle that tax collection and revenue should be for public purposes and expenditures

As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when he
buys goods. Output tax meanwhile is the tax due to the person when he sells goods. In computing
the VAT payable, three possible scenarios may arise:
First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the input
taxes that he paid and passed on by the suppliers, then no payment is required;

Second, when the output taxes exceed the input taxes, the person shall be liable for the excess,
which has to be paid to the Bureau of Internal Revenue (BIR);69 and

Third, if the input taxes exceed the output taxes, the excess shall be carried over to the succeeding
quarter or quarters. Should the input taxes result from zero-rated or effectively zero-rated
transactions, any excess over the output taxes shall instead be refunded to the taxpayer or credited
against other internal revenue taxes, at the taxpayer’s option.70

Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person can
credit his input tax only up to the extent of 70% of the output tax. In layman’s term, the value-added
taxes that a person/taxpayer paid and passed on to him by a seller can only be credited up to 70%
of the value-added taxes that is due to him on a taxable transaction. There is no retention of any tax
collection because the person/taxpayer has already previously paid the input tax to a seller, and the
seller will subsequently remit such input tax to the BIR. The party directly liable for the payment of
the tax is the seller.71 What only needs to be done is for the person/taxpayer to apply or credit these
input taxes, as evidenced by receipts, against his output taxes.

Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax partakes
the nature of a property that may not be confiscated, appropriated, or limited without due process of
law.

The input tax is not a property or a property right within the constitutional purview of the due process
clause. A VAT-registered person’s entitlement to the creditable input tax is a mere statutory
privilege.

The distinction between statutory privileges and vested rights must be borne in mind for persons
have no vested rights in statutory privileges. The state may change or take away rights, which were
created by the law of the state, although it may not take away property, which was vested by virtue
of such rights.72

Under the previous system of single-stage taxation, taxes paid at every level of distribution are not
recoverable from the taxes payable, although it becomes part of the cost, which is deductible from
the gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all
sales, it was then that the crediting of the input tax paid on purchase or importation of goods and
services by VAT-registered persons against the output tax was introduced.73 This was adopted by
the Expanded VAT Law (R.A. No. 7716),74 and The Tax Reform Act of 1997 (R.A. No. 8424).75 The
right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that
also the law can remove, or in this case, limit.

Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A. No.
9337, amending Section 110(A) of the NIRC, which provides:

SEC. 110. Tax Credits. –

(A) Creditable Input Tax. – …

Provided, That the input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds One million pesos
(₱1,000,000.00): Provided, however, That if the estimated useful life of the capital goods is less than
five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such a
shorter period: Provided, finally, That in the case of purchase of services, lease or use of properties,
the input tax shall be creditable to the purchaser, lessee or license upon payment of the
compensation, rental, royalty or fee.

The foregoing section imposes a 60-month period within which to amortize the creditable input tax
on purchase or importation of capital goods with acquisition cost of ₱1 Million pesos, exclusive of the
VAT component. Such spread out only poses a delay in the crediting of the input tax. Petitioners’
argument is without basis because the taxpayer is not permanently deprived of his privilege to credit
the input tax.

It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in this
case amounts to a 4-year interest-free loan to the government.76 In the same breath, Congress also
justified its move by saying that the provision was designed to raise an annual revenue of 22.6
billion.77 The legislature also dispelled the fear that the provision will fend off foreign investments,
saying that foreign investors have other tax incentives provided by law, and citing the case of China,
where despite a 17.5% non-creditable VAT, foreign investments were not deterred.78 Again, for
whatever is the purpose of the 60-month amortization, this involves executive economic policy and
legislative wisdom in which the Court cannot intervene.

With regard to the 5% creditable withholding tax imposed on payments made by the government for
taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads:

SEC. 114. Return and Payment of Value-added Tax. –

(C) Withholding of Value-added Tax. – The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs)
shall, before making payment on account of each purchase of goods and services which are subject
to the value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold a final
value-added tax at the rate of five percent (5%) of the gross payment thereof: Provided, That the
payment for lease or use of properties or property rights to nonresident owners shall be subject to
ten percent (10%) withholding tax at the time of payment. For purposes of this Section, the payor or
person in control of the payment shall be considered as the withholding agent.

The value-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made.

Section 114(C) merely provides a method of collection, or as stated by respondents, a more

simplified VAT withholding system. The government in this case is constituted as a withholding
agent with respect to their payments for goods and services.

Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be
withheld -- 3% on gross payments for purchases of goods; 6% on gross payments for services
supplied by contractors other than by public works contractors; 8.5% on gross payments for services
supplied by public work contractors; or 10% on payment for the lease or use of properties or
property rights to nonresident owners. Under the present Section 114(C), these different rates,
except for the 10% on lease or property rights payment to nonresidents, were deleted, and a uniform
rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as opposed to
creditable, means full. Thus, it is provided in Section 114(C): "final value-added tax at the rate of five
percent (5%)."

In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the
concept of final withholding tax on income was explained, to wit:

SECTION 2.57. Withholding of Tax at Source

(A) Final Withholding Tax. – Under the final withholding tax system the amount of income tax
withheld by the withholding agent is constituted as full and final payment of the income tax due
from the payee on the said income. The liability for payment of the tax rests primarily on the payor as
a withholding agent. Thus, in case of his failure to withhold the tax or in case of underwithholding,
the deficiency tax shall be collected from the payor/withholding agent. …

(B) Creditable Withholding Tax. – Under the creditable withholding tax system, taxes withheld on
certain income payments are intended to equal or at least approximate the tax due of the payee on
said income. … Taxes withheld on income payments covered by the expanded withholding tax
(referred to in Sec. 2.57.2 of these regulations) and compensation income (referred to in Sec. 2.78
also of these regulations) are creditable in nature.

As applied to value-added tax, this means that taxable transactions with the government are subject
to a 5% rate, which constitutes as full payment of the tax payable on the transaction. This represents
the net VAT payable of the seller. The other 5% effectively accounts for the standard input VAT
(deemed input VAT), in lieu of the actual input VAT directly or attributable to the taxable
transaction.79

The Court need not explore the rationale behind the provision. It is clear that Congress intended to
treat differently taxable transactions with the government.80 This is supported by the fact that under
the old provision, the 5% tax withheld by the government remains creditable against the tax liability
of the seller or contractor, to wit:

SEC. 114. Return and Payment of Value-added Tax. –

(C) Withholding of Creditable Value-added Tax. – The Government or any of its political
subdivisions, instrumentalities or agencies, including government-owned or controlled corporations
(GOCCs) shall, before making payment on account of each purchase of goods from sellers and
services rendered by contractors which are subject to the value-added tax imposed in Sections 106
and 108 of this Code, deduct and withhold the value-added tax due at the rate of three percent (3%)
of the gross payment for the purchase of goods and six percent (6%) on gross receipts for services
rendered by contractors on every sale or installment payment which shall becreditable against the
value-added tax liability of the seller or contractor: Provided, however, That in the case of
government public works contractors, the withholding rate shall be eight and one-half percent
(8.5%): Provided, further, That the payment for lease or use of properties or property rights to
nonresident owners shall be subject to ten percent (10%) withholding tax at the time of payment. For
this purpose, the payor or person in control of the payment shall be considered as the withholding
agent.

The valued-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits Congress’s
intention to treat transactions with the government differently. Since it has not been shown that the
class subject to the 5% final withholding tax has been unreasonably narrowed, there is no reason to
invalidate the provision. Petitioners, as petroleum dealers, are not the only ones subjected to the 5%
final withholding tax. It applies to all those who deal with the government.

Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue
Regulations No. 14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the BIR,
provides that should the actual input tax exceed 5% of gross payments, the excess may form part of
the cost. Equally, should the actual input tax be less than 5%, the difference is treated as income.81

Petitioners also argue that by imposing a limitation on the creditable input tax, the government gets
to tax a profit or value-added even if there is no profit or value-added.

Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will not
engage in a legal joust where premises are what ifs, arguments, theoretical and facts, uncertain. Any
disquisition by the Court on this point will only be, as Shakespeare describes life in Macbeth,82 "full of
sound and fury, signifying nothing."

What’s more, petitioners’ contention assumes the proposition that there is no profit or value-added. It
need not take an astute businessman to know that it is a matter of exception that a business will sell
goods or services without profit or value-added. It cannot be overstressed that a business is created
precisely for profit.

The equal protection clause under the Constitution means that "no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances."83

The power of the State to make reasonable and natural classifications for the purposes of taxation
has long been established. Whether it relates to the subject of taxation, the kind of property, the
rates to be levied, or the amounts to be raised, the methods of assessment, valuation and collection,
the State’s power is entitled to presumption of validity. As a rule, the judiciary will not interfere with
such power absent a clear showing of unreasonableness, discrimination, or arbitrariness.84

Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input
tax, or invests in capital equipment, or has several transactions with the government, is not based on
real and substantial differences to meet a valid classification.

The argument is pedantic, if not outright baseless. The law does not make any classification in the
subject of taxation, the kind of property, the rates to be levied or the amounts to be raised, the
methods of assessment, valuation and collection. Petitioners’ alleged distinctions are based on
variables that bear different consequences. While the implementation of the law may yield varying
end results depending on one’s profit margin and value-added, the Court cannot go beyond what the
legislature has laid down and interfere with the affairs of business.

The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection. What the clause
requires is equality among equals as determined according to a valid classification. By classification
is meant the grouping of persons or things similar to each other in certain particulars and different
from all others in these same particulars.85
Petitioners brought to the Court’s attention the introduction of Senate Bill No. 2038 by Sens. S.R.
Osmeña III and Ma. Ana Consuelo A.S. – Madrigal on June 6, 2005, and House Bill No. 4493 by
Rep. Eric D. Singson. The proposed legislation seeks to amend the 70% limitation by increasing the
same to 90%. This, according to petitioners, supports their stance that the 70% limitation is arbitrary
and confiscatory. On this score, suffice it to say that these are still proposed legislations. Until
Congress amends the law, and absent any unequivocal basis for its unconstitutionality, the 70%
limitation stays.

B. Uniformity and Equitability of Taxation

Article VI, Section 28(1) of the Constitution reads:

The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system
of taxation.

Uniformity in taxation means that all taxable articles or kinds of property of the same class shall be
taxed at the same rate. Different articles may be taxed at different amounts provided that the rate is
uniform on the same class everywhere with all people at all times.86

In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all goods
and services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC, provide for a rate of 10% (or 12%) on sale of goods and properties,
importation of goods, and sale of services and use or lease of properties. These same sections also
provide for a 0% rate on certain sales and transaction.

Neither does the law make any distinction as to the type of industry or trade that will bear the 70%
limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of capital
goods or the 5% final withholding tax by the government. It must be stressed that the rule of uniform
taxation does not deprive Congress of the power to classify subjects of taxation, and only demands
uniformity within the particular class.87

R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of 0% or
10% (or 12%) does not apply to sales of goods or services with gross annual sales or receipts not
exceeding ₱1,500,000.00.88 Also, basic marine and agricultural food products in their original state
are still not subject to the tax,89 thus ensuring that prices at the grassroots level will remain
accessible. As was stated in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan:90

The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding ₱200,000.00. Small
corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax
are sales of farm and marine products, so that the costs of basic food and other necessities, spared
as they are from the incidence of the VAT, are expected to be relatively lower and within the reach of
the general public.

It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and unduly
favors those with high profit margins. Congress was not oblivious to this. Thus, to equalize the
weighty burden the law entails, the law, under Section 116, imposed a 3% percentage tax on VAT-
exempt persons under Section 109(v), i.e., transactions with gross annual sales and/or receipts not
exceeding ₱1.5 Million. This acts as a equalizer because in effect, bigger businesses that qualify for
VAT coverage and VAT-exempt taxpayers stand on equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the tax
on those previously exempt. Excise taxes on petroleum products91 and natural gas92 were reduced.
Percentage tax on domestic carriers was removed.93 Power producers are now exempt from paying
franchise tax.94

Aside from these, Congress also increased the income tax rates of corporations, in order to
distribute the burden of taxation. Domestic, foreign, and non-resident corporations are now subject
to a 35% income tax rate, from a previous 32%.95 Intercorporate dividends of non-resident foreign
corporations are still subject to 15% final withholding tax but the tax credit allowed on the
corporation’s domicile was increased to 20%.96 The Philippine Amusement and Gaming Corporation
(PAGCOR) is not exempt from income taxes anymore.97 Even the sale by an artist of his works or
services performed for the production of such works was not spared.

All these were designed to ease, as well as spread out, the burden of taxation, which would
otherwise rest largely on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is
equitable.

C. Progressivity of Taxation

Lastly, petitioners contend that the limitation on the creditable input tax is anything but regressive. It
is the smaller business with higher input tax-output tax ratio that will suffer the consequences.

Progressive taxation is built on the principle of the taxpayer’s ability to pay. This principle was also
lifted from Adam Smith’s Canons of Taxation, and it states:

I. The subjects of every state ought to contribute towards the support of the government, as nearly
as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they
respectively enjoy under the protection of the state.

Taxation is progressive when its rate goes up depending on the resources of the person affected.98

The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle of
progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the
consumer or business for every goods bought or services enjoyed is the same regardless of income.
In

other words, the VAT paid eats the same portion of an income, whether big or small. The disparity
lies in the income earned by a person or profit margin marked by a business, such that the higher
the income or profit margin, the smaller the portion of the income or profit that is eaten by VAT. A
converso, the lower the income or profit margin, the bigger the part that the VAT eats away. At the
end of the day, it is really the lower income group or businesses with low-profit margins that is
always hardest hit.

Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the VAT.
What it simply provides is that Congress shall "evolve a progressive system of taxation." The Court
stated in the Tolentino case, thus:

The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall ‘evolve a progressive system of taxation.’
The constitutional provision has been interpreted to mean simply that ‘direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized.’ (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. 1977)) Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
§17 (1) of the 1973 Constitution from which the present Art. VI, §28 (1) was taken. Sales taxes are
also regressive.

Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while granting
exemptions to other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC)99

CONCLUSION

It has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a
first-aid measure to resuscitate an economy in distress. The Court is neither blind nor is it turning a
deaf ear on the plight of the masses. But it does not have the panacea for the malady that the law
seeks to remedy. As in other cases, the Court cannot strike down a law as unconstitutional simply
because of its yokes.

Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the
judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature may
not correct, for instance, those involving political questions. . . .

Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for
all political or social ills; We should not forget that the Constitution has judiciously allocated the
powers of government to three distinct and separate compartments; and that judicial interpretation
has tended to the preservation of the independence of the three, and a zealous regard of the
prerogatives of each, knowing full well that one is not the guardian of the others and that, for official
wrong-doing, each may be brought to account, either by impeachment, trial or by the ballot box.100

The words of the Court in Vera vs. Avelino101 holds true then, as it still holds true now. All things
considered, there is no raison d'être for the unconstitutionality of R.A. No. 9337.

WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos. 168056,
168207, 168461, 168463, and 168730, are hereby DISMISSED.

There being no constitutional impediment to the full enforcement and implementation of R.A. No.
9337, the temporary restraining order issued by the Court on July 1, 2005 is LIFTED upon finality of
herein decision.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

 Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice
Associate Justice
RENATO C. CORONA CONCHITA CARPIO-MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA
Associate Justice
Associate Justice
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice
Associate Justice

CANCIO C. GARCIA

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

HILARIO G. DAVIDE, JR.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 170701 January 22, 2014

RALPH P. TUA, Petitioner,

vs.
HON. CESAR A. MANGROBANG, Presiding Judge, Branch 22, Regional Trial Court, Imus,
Cavite; and ROSSANA HONRADO-TUA, Respondents.
 DECISION

PERALTA, J.:

Before us is a petition for review on certiorari which seeks to annul the Decision1

dated October 28, 2005 of the Court of Appeals (CA) issued in CA-G.R. SP No. 89939.

On May 20, 2005, respondent Rossana Honrado-Tua (respondent) filed with the Regional Trial
Court (RTC) of Imus, Cavite a Verified Petition2 for herself and in behalf of her minor children,
Joshua Raphael, Jesse Ruth Lois, and J ezreel Abigail, for the issuance of a protection order,
pursuant to Republic Act (RA) 9262 or the Anti-Violence Against Women and their Children Act of
2004, against her husband, petitioner Ralph Tua. The case was docketed as Civil Case No. 0464-05
and raffled-off to Branch 22. Respondent claimed that she and her children had suffered from
petitioner’s abusive conduct; that petitioner had threatened to cause her and the children physical
harm for the purpose of controlling her actions or decisions; that she was actually deprived of
custody and access to her minor children; and, that she was threatened to be deprived of her and
her children’s financial support.

Respondent and petitioner were married on January 10, 1998 in Makati City. They have three
children, namely, Joshua Raphael born on February 9, 1999, Jesse Ruth Lois, born on June 27,
2000, and Jezreel Abigail, born on December 25, 2001. In her Affidavit3 attached to the petition,
respondent claimed, among others, that: there was a time when petitioner went to her room and
cocked his gun and pointed the barrel of his gun to his head as he wanted to convince her not to
proceed with the legal separation case she filed; she hid her fears although she was scared; there
was also an instance when petitioner fed her children with the fried chicken that her youngest
daughter had chewed and spat out; in order to stop his child from crying, petitioner would threaten
him with a belt; when she told petitioner that she felt unsafe and insecure with the latter's presence
and asked him to stop coming to the house as often as he wanted or she would apply for a
protection order, petitioner got furious and threatened her of withholding his financial support and
even held her by the nape and pushed her to lie flat on the bed; and, on May 4, 2005, while she was
at work, petitioner with companions went to her new home and forcibly took the children and refused
to give them back to her.

On May 23, 2005, the RTC issued a Temporary Protection Order (TPO),4 which we quote in full:

Pursuant to the provisions of R.A. 9262, otherwise known as the "Anti-Violence Against Women and
their Children Act of 2004, a Temporary Protection Order (TPO) effective for thirty (30) days from
date of receipt is hereby issued against respondent Ralph P. Tua.

For the purpose of the implementation of the Temporary Protection Order, the respondent (herein
petitioner Ralph) is hereby ordered to:

1. Enjoin from committing and threatening to commit personally or through another, physical,
verbal and emotional harm or abuse against the herein petitioner (respondent) and other
family and household members;

2. Restrain from harassing, annoying, texting, telephoning, contacting or otherwise

communicating with the petitioner (respondent) whether directly or indirectly or engaged in
any psychological form of harassment;
VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.

The Sheriff of this Court, the PNP Imus, Cavite, or any Officers of the Law are hereby commanded
to effect this Order immediately and to use necessary force and measures under the law to
implement this Order.

Let the hearing for Permanent Protection Order be set on June 9, 2005 at 2:00 o’clock in the
afternoon.

SO ORDERED.5

In his Comment6 to respondent's Petition with Urgent Motion to Lift TPO, petitioner denied
respondent’s allegations and alleged, among others, that he had been maintaining a separate abode
from petitioner since November 2004; that it was respondent who verbally abused and threatened
him whenever their children's stay with him was extended; that respondent had been staying with a
certain Rebendor Zuñiga despite the impropriety and moral implications of such set-up; that despite
their written agreement that their minor children should stay in their conjugal home, the latter violated
the same when she surreptitiously moved out of their conjugal dwelling with their minor children and
stayed with said Zuñiga; and, that respondent is mentally, psychologically, spiritually and morally
unfit to keep the children in her custody. Petitioner contended that the issuance of the TPO on May
23, 2005 is unconstitutional for being violative of the due process clause of the Constitution.

Without awaiting for the resolution of his Comment on the petition and motion to lift TPO, petitioner
filed with the CA a petition for certiorari with prayer for the issuance of a writ of preliminary injunction
and/or temporary restraining order and preliminary injunction and hold departure order assailing the
May 23, 2005 TPO issued by the RTC.

On June 9, 2005, the CA, in order not to render the petition moot and to avoid grave and irreparable
injury, issued a temporary restraining order to temporarily enjoin the parties and their agents from
enforcing the assailed May 23, 2005 TPO issued in Civil Case No. 0464-05.7

Petitioner later filed an Urgent Motion for Issuance of a Writ of Preliminary Injunction with
Manifestation,8 praying that the enforcement of all orders, decision to be issued by the RTC and all
the proceedings therein be restrained. A hearing9 was, subsequently, conducted on the motion.

On October 28, 2005, the CA issued its assailed decision, the decretal portion of which reads:

WHEREFORE, based on the foregoing premises, the instant petition is hereby DENIED for lack of
merit. Accordingly, the assailed Temporary Protection Order dated May 23, 2002 (sic) issued by the
Regional Trial Court of Imus, Cavite, Branch 22 in Civil Case No. 0464-05 is UPHELD.10

In so ruling, the CA found that the petition filed by respondent under RA 9262 is still pending before
the RTC; thus, the factual matters raised therein could not be passed upon in the petition for
certiorari filed with it. The CA noted that during the pendency of the herein proceedings, petitioner
filed an urgent motion to quash warrant issued by the RTC and which matter could not also be a
subject of this petition which assails the TPO dated May 23, 2005 and that the motion to quash
should have been filed with the RTC.

The CA found that the TPO dated May 23, 2005 was validly issued by the RTC and found no grave
abuse of discretion in the issuance thereof as the same were in complete accord with the provision
of RA 9262.
As to petitioner's argument that there was no basis for the issuance of the TPO, considering that the
provision authorizing such issuance is unconstitutional, the CA ruled that since the matter raised
herein was the RTC’s alleged grave abuse of discretion in issuing the TPO, such matter could be
resolved without having to rule on the constitutionality of RA 9262 and its provisions. And that the
requisites that the constitutionality of the law in question be the very lis mota of the case was absent.

Dissatisfied, petitioner files the instant petition raising the following issues:

THE HONORABLE COURT OF APPEALS WITH DUE RESPECT SERIOUSLY ERRED IN

HOLDING AND FINDING IN A MANNER CONTRARY TO ESTABLISHED RULES AND
JURISPRUDENCE THAT PUBLIC RESPONDENT COMMITTED NO GRAVE ABUSE OF
DISCRETION WHEN THE LATTER ISSUED THE TEMPORARY PROTECTIVE ORDER
(TPO) DATED 23 MAY 2005 WITHOUT OBSERVING DUE PROCESS OF LAW AND
CONSIDERATIONS OF JUSTICE AND BASIC HUMAN RIGHTS.

II

THE HONORABLE COURT OF APPEALS IN REFUSING TO RULE ON THE

CONSTITUTIONALITY OF THE PROVISIONS OF RA 9262 HAS DECIDED THE CASE IN
A MANNER NOT IN ACCORD WITH ESTABLISHED LAWS AND JURISPRUDENCE
CONSIDERING THAT CONTRARY TO ITS FINDINGS THE CONSTITUTIONALITY OF
THE SAID LAW IS THE LIS MOTA OF THE CASE.11

Petitioner claims that contrary to the stance of the CA in not deciding the issue of the constitutionality
of RA 9262, the issue presented is the very lis mota in the instant case.

The issue of constitutionality of RA 9262 was raised by petitioner in his Comment to respondent's
Petition with Urgent Motion to Lift TPO dated May 23, 2005 filed with the RTC. However, without
awaiting for the resolution of the same, petitioner filed a petition for certiorari with the CA assailing
the TPO issued for violating the due process clause of the Constitution. Contrary to the CA's finding
that the matter raised in the petition filed with it was the RTC’s alleged grave abuse of discretion in
issuing the TPO which could be resolved without having to rule on the constitutionality of RA 9262
and its provisions, we find that since petitioner is assailing the validity of RA 9262 wherein
respondent's right to a protection order is based upon, the constitutionality of the said law must first
be decided upon. After all, the alleged unconstitutionality of RA 9262 is, for all intents and purposes,
a valid cause for the non-issuance of a protection order.12 Notwithstanding, however, we still find no
merit to declare RA 9262 unconstitutional.

Petitioner particularly directs his constitutional attack on Section 15 of RA 9262 contending that had
there been no ex parte issuance of the TPO, he would have been afforded due process of law and
had properly presented his side on the matter; that the questioned provision simply encourages
arbitrary enforcement repulsive to basic constitutional rights which affects his life, liberty and
property.

We are not impressed.

Section 15 of RA 9262 provides:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the
protection order issued by the court on the date of filing of the application after ex parte
determination that such order should be issued. A court may grant in a TPO any, some or all of the
reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a
hearing on the issuance of a [Permanent Protection Order] PPO prior to or on the date of the
expiration of the TPO. The court shall order the immediate personal service of the TPO on the
respondent by the court sheriff who may obtain the assistance of law enforcement agents for the
service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a
PPO.

In Garcia v. Drilon,13 wherein petitioner therein argued that Section 15 of RA 9262 is a violation of the
due process clause of the Constitution, we struck down the challenge and held:

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.

The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support.

The rules require that petitions for protection order be in writing, signed and verified by the petitioner
thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of
the essence in cases of VAWC if further violence is to be prevented," the court is authorized to issue
ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim
is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such violence, which is
about to recur.

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property, in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests, among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. x x x. The
essence of due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard" does not only mean verbal
arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of procedural due process.14

Petitioner also assails that there is an invalid delegation of legislative power to the court and to
barangay officials to issue protection orders.

Section 2 of Article VIII of the 1987 Constitution provides that "the Congress shall have the power to
define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof." Hence, the primary
judge of the necessity, adequacy, wisdom, reasonableness and expediency of any law is primarily
the function of the legislature.15 The act of Congress entrusting us with the issuance of protection
orders is in pursuance of our authority to settle justiciable controversies or disputes involving rights
that are enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights.16

As to the issuance of protection order by the Punong Barangay, Section 14 pertinently provides:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay. 1âw phi 1

Hence, the issuance of a BPO by the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman or her child physical harm.
Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty
under the Local Government Code to "enforce all laws and ordinances," and to "maintain public
order in the barangay."17

Petitioner assails that the CA erred in finding that the RTC did not commit grave abuse of discretion
in issuing the TPO dated May 23, 2005 as the petition was bereft of any indication of grounds for the
issuance of the same. Petitioner claims that while the issuance of the TPO is ex parte, there must be
a judicial determination of the basis thereof. He contends that the allegations in respondent's
affidavit attached to the petition, and without admitting the same to be true, are nothing more than
normal or usual quarrels between a husband and wife which are not grave or imminent enough to
merit the issuance of a TPO.

We are not persuaded.

We quote again Section 15 of RA 9262 for ready reference, thus:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the
protection order issued by the court on the date of filing of the application after ex parte
determination that such order should be issued. A court may grant in a TPO any, some or all of the
reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a
hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall
order the immediate personal service of the TPO on the respondent by the court sheriff who may
obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the
date of the hearing on the merits of the issuance of a PPO.

Clearly, the court is authorized to issue a TPO on the date of the filing of the application after ex
parte determination that there is basis for the issuance thereof. Ex parte means that the respondent
need not be notified or be present in the hearing for the issuance of the TPO. Thus, it is within the
court’s discretion, based on the petition and the affidavit attached thereto, to determine that the
violent acts against women and their children for the issuance of a TPO have been committed.

And Section 5 of the same law provides:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(c) Attempting to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent physical harm;

(e) Attempting to compel or compelling the woman or her child to engage in conduct which
the woman or her child has the right to desist from or desist from conduct which the woman
or her child has the right to engage in, or attempting to restrict or restricting the woman's or
her child's freedom of movement or conduct by force or threat of force, physical or other
harm or threat of physical or other harm, or intimidation directed against the woman or child.
This shall include, but not limited to, the following acts committed with the purpose or effect
of controlling or restricting the woman's or her child's movement or conduct:
 (1) Threatening to deprive or actually depriving the woman or her child of custody to
her/his family;

(2) Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman's children
insufficient financial support;

(3) Depriving or threatening to deprive the woman or her child of a legal right;

(4) Preventing the woman in engaging in any legitimate profession, occupation,

business or activity or controlling the victim's own money or properties, or solely
controlling the conjugal or common money, or properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her
actions or decisions;

(g) Causing or attempting to cause the woman or her child to engage in any sexual activity
which does not constitute rape, by force or threat of force, physical harm, or through
intimidation directed against the woman or her child or her/his immediate family;

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that
alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her
child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to animals or
pets of the woman or her child; and

(5) Engaging in any form of harassment or violence;

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her
child, including, but not limited to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor children of access to the woman's child/children.

In this case, the alleged acts of petitioner among others, i.e., he cocked the gun and pointed the
same to his head in order to convince respondent not to proceed with the legal separation case;
feeding his other children with the food which another child spat out; and threatening the crying child
with a belt to stop him from crying which was repeatedly done; and holding respondent by her nape
when he got furious that she was asking him not to come often to their conjugal home and hold
office thereat after their agreed separation and threatening her of withholding half of the financial
support for the kids, while not conclusive, are enough bases for the issuance of a TPO. Petitioner's
actions would fall under the enumeration of Section 5, more particularly, paragraphs a, d, e (2), f, h,
and i.
It is settled doctrine that there is grave abuse of discretion when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent
and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.18We find that the CA did not err when it found no
grave abuse of discretion committed by the RTC in the issuance of the TPO.

The factual matters herein raised by petitioner should be presented during the hearing on the merits
on the issuance of the Permanent Protection Order.

WHEREFORE, the petition is DENIED. The Decision dated October 28, 2005 of the Court of
Appeals issued in CA-G.R. SP No. 89939, upholding the Regional Trial Court's issuance of the
Temporary Protection Order dated May 23, 2005, is AFFIRMED. The Regional Trial Court of

Imus, Cavite is hereby ORDERED to resolve with dispatch respondent's Petition for a Permanent
Protection Order.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),respondents.

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

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT
AGENCY, respondents.

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

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act

No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act
of 2002, insofar as it requires mandatory drug testing of candidates for public
office, students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutor's office
with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

 SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be
done by any government forensic laboratories or by any of the drug
testing laboratories accredited and monitored by the DOH to safeguard
the quality of the test results. x x x The drug testing shall employ,
among others, two (2) testing methods, the screening test which will
determine the positive result as well as the type of drug used and the
confirmatory test which will confirm a positive screening test. x x x The
following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary

and tertiary schools shall, pursuant to the related rules and regulations
as contained in the school's student handbook and with notice to the
parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and
employees of public and private offices, whether domestic or overseas,
shall be subjected to undergo a random drug test as contained in the
company's work rules and regulations, x x x for purposes of reducing
the risk in the workplace. Any officer or employee found positive for use
of dangerous drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provisions of Article
282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal
offense having an imposable penalty of imprisonment of not less than
six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in
the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be

positive for dangerous drugs use shall be subject to the provisions of Section
15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued

Resolution No. 6486, prescribing the rules and regulations on the mandatory
drug testing of candidates for public office in connection with the May 10,
2004 synchronized national and local elections. The pertinent portions of the
said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that

public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and
efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test,

the public will know the quality of candidates they are electing and they
will be assured that only those who can serve with utmost responsibility,
integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested

in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus
Election Code), [RA] 9165 and other election laws, RESOLVED to
promulgate, as it hereby promulgates, the following rules and
regulations on the conduct of mandatory drug testing to candidates for
public office[:]

SECTION 1. Coverage. - All candidates for public office, both

national and local, in the May 10, 2004 Synchronized National and
Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored and
accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their
respective offices, the Comelec Offices and employees concerned shall
submit to the Law Department two (2) separate lists of candidates. The
first list shall consist of those candidates who complied with the
 mandatory drug test while the second list shall consist of those
candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before

the start of the campaign period, the [COMELEC] shall prepare two
separate lists of candidates. The first list shall consist of those
candidates who complied with the mandatory drug test while the second
list shall consist of those candidates who failed to comply with said drug
test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug
test certificate. - No person elected to any public office shall enter upon
the duties of his office until he has undergone mandatory drug test and
filed with the offices enumerated under Section 2 hereof the drug test
certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate

for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari
and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a qualification for candidates for
senators in addition to those already provided for in the 1987 Constitution; and
(2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born

citizen of the Philippines, and, on the day of the election, is at least thirty
- five years of age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5)

qualifications for one to be a candidate for, elected to, and be a member of the
Senate. He says that both the Congress and COMELEC, by requiring, via RA
9165 and Resolution No. 6486, a senatorial aspirant, among other candidates,
to undergo a mandatory drug test, create an additional qualification that all
candidates for senator must first be certified as drug free. He adds that there
is no provision in the Constitution authorizing the Congress or COMELEC to
expand the qualification requirements of candidates for senator.
 G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs
Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from
enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground
that they are constitutionally infirm. For one, the provisions constitute undue
delegation of legislative power when they give unbridled discretion to schools
and employers to determine the manner of drug testing. For another, the
provisions trench in the equal protection clause inasmuch as they can be used
to harass a student or an employee deemed undesirable. And for a third, a
person's constitutional right against unreasonable searches is also breached
by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in
his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f),
and (g) of RA 9165 be struck down as unconstitutional for infringing on the
constitutional right to privacy, the right against unreasonable search and
seizure, and the right against self - incrimination, and for being contrary to the
due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As respondents
DDB and PDEA assert, SJS and Laserna failed to allege any incident
amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection
with a bona fidecontroversy which involves the statute sought to be
reviewed.3 But even with the presence of an actual case or controversy, the
Court may refuse to exercise judicial review unless the constitutional question
is brought before it by a party having the requisite standing to challenge it.4 To
have standing, one must establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government;
the injury is fairly traceable to the challenged action; and the injury is likely to
be redressed by a favorable action.5
The rule on standing, however, is a matter of procedure; hence, it can be
relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of
paramount public interest.6 There is no doubt that Pimentel, as senator of the
Philippines and candidate for the May 10, 2004 elections, possesses the
requisite standing since he has substantial interests in the subject matter of
the petition, among other preliminary considerations. Regarding SJS and
Laserna, this Court is wont to relax the rule on locus standi owing primarily to
the transcendental importance and the paramount public interest involved in
the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an
additional qualification for candidates for senator? Corollarily, can Congress
enact a law prescribing qualifications for candidates for senator in addition to
those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional?
Specifically, do these paragraphs violate the right to privacy, the right against
unreasonable searches and seizure, and the equal protection clause? Or do
they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC

Resolution No. 6486 illegally impose an additional qualification on candidates
for senator. He points out that, subject to the provisions on nuisance
candidates, a candidate for senator needs only to meet the qualifications laid
down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter
registration, (3) literacy, (4) age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator need not possess any other
qualification to run for senator and be voted upon and elected as member of
the Senate. The Congress cannot validly amend or otherwise modify these
qualification standards, as it cannot disregard, evade, or weaken the force of a
constitutional mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165
should be, as it is hereby declared as, unconstitutional. It is basic that if a law
or an administrative rule violates any norm of the Constitution, that issuance is
null and void and has no effect. The Constitution is the basic law to which all
laws must conform; no act shall be valid if it conflicts with the Constitution.8 In
the discharge of their defined functions, the three departments of government
have no choice but to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to
certain limitations. As early as 1927, in Government v. Springer, the Court has
defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting
under delegated authority, the powers of each of the departments x x x
are limited and confined within the four walls of the constitution or the
charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the shore
of legislative authority against which the waves of legislative enactment
may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to

substantive and constitutional limitations which circumscribe both the exercise
of the power itself and the allowable subjects of legislation.11 The substantive
constitutional limitations are chiefly found in the Bill of Rights12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the
qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for senator
in addition to what the Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional qualification, the COMELEC, to
be sure, is also without such power. The right of a citizen in the democratic
process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed

COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec.
36(g) unmistakably requires a candidate for senator to be certified illegal -
drug clean, obviously as a pre - condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator - elect. The COMELEC
resolution completes the chain with the proviso that "[n]o person elected to
any public office shall enter upon the duties of his office until he has
undergone mandatory drug test." Viewed, therefore, in its proper context, Sec.
36(g) of RA 9165 and the implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at the minimum, requires for
membership in the Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is really of no
moment, as getting elected would be of little value if one cannot assume office
for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA

9165, that the provision does not expressly state that non - compliance with
the drug test imposition is a disqualifying factor or would work to nullify a
certificate of candidacy. This argument may be accorded plausibility if the
drug test requirement is optional. But the particular section of the law, without
exception, made drug - testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the
provision deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve around the
election and the assumption of public office of the candidates. Any other
construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a
pure jargon without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No.

6486 is no longer enforceable, for by its terms, it was intended to cover only
the May 10, 2004 synchronized elections and the candidates running in that
electoral event. Nonetheless, to obviate repetition, the Court deems it
appropriate to review and rule, as it hereby rules, on its validity as an
implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of

Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional
provision defining the qualification or eligibility requirements for one aspiring to
run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees, while
mandatory, is a random and suspicionless arrangement. The objective is to
stamp out illegal drug and safeguard in the process "the well being of [the]
citizenry, particularly the youth, from the harmful effects of dangerous drugs."
This statutory purpose, per the policy - declaration portion of the law, can be
achieved via the pursuit by the state of "an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs x x x through an
integrated system of planning, implementation and enforcement of anti - drug
abuse policies, programs and projects."14 The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as a result of
this random testing are not necessarily treated as criminals. They may even
be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement,

Treatment and Rehabilitation. - A drug dependent or any person who
violates Section 15 of this Act may, by himself/herself or through his/her
parent, [close relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such application, the Board
shall bring forth the matter to the Court which shall order that the
applicant be examined for drug dependency. If the examination x x x
results in the certification that the applicant is a drug dependent, he/she
shall be ordered by the Court to undergo treatment and rehabilitation in
a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program. - A drug dependent under the voluntary
submission program, who is finally discharged from confinement, shall
be exempt from the criminal liability under Section 15 of this Act subject
to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous
systems of the young are more critically impaired by intoxicants and are more
inclined to drug dependency. Their recovery is also at a depressingly low
rate.15
The right to privacy has been accorded recognition in this jurisdiction as a
facet of the right protected by the guarantee against unreasonable search and
seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to
privacy has long come into its own, this case appears to be the first time that
the validity of a state - decreed search or intrusion through the medium of
mandatory random drug testing among students and employees is, in this
jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With

respect to random drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County, et
al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme
Court - decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the

drug menace in their respective institutions following the discovery of frequent
drug use by school athletes. After consultation with the parents, they required
random urinalysis drug testing for the school's athletes. James Acton, a high
school student, was denied participation in the football program after he
refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming
that the school's drug testing policy violated, inter alia, the Fourth
Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised

in Vernonia, considered the following: (1) schools stand in loco parentis over
their students; (2) school children, while not shedding their constitutional rights
at the school gate, have less privacy rights; (3) athletes have less privacy
rights than non - athletes since the former observe communal undress before
and after sports events; (4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree of school supervision and
regulation; (5) requiring urine samples does not invade a student's privacy
since a student need not undress for this kind of drug testing; and (6) there is
need for the drug testing because of the dangerous effects of illegal drugs on
the young. The US Supreme Court held that the policy constituted reasonable
search under the Fourth20 and 14th Amendments and declared the random
drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh,

Oklahoma required a drug test for high school students desiring to join extra -
curricular activities. Lindsay Earls, a member of the show choir, marching
band, and academic team declined to undergo a drug test and averred that
the drug - testing policy made to apply to non - athletes violated the Fourth
and 14th Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in locker
rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug

testing even among non - athletes on the basis of the school's custodial
responsibility and authority. In so ruling, said court made no distinction
between a non - athlete and an athlete. It ratiocinated that schools and
teachers act in place of the parents with a similar interest and duty of
safeguarding the health of the students. And in holding that the school could
implement its random drug - testing policy, the Court hinted that such a test
was a kind of search in which even a reasonable parent might need to
engage.

In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in
loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and
supervision of their parents, guardians, and schools; (3) schools, acting in
loco parentis, have a duty to safeguard the health and well - being of their
students and may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose conditions on
applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be
sure, the right to enroll is not absolute; it is subject to fair, reasonable, and
equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the
country that threatens the well - being of the people,21 particularly the youth
and school children who usually end up as victims. Accordingly, and until a
more effective method is conceptualized and put in motion, a random drug
testing of students in secondary and tertiary schools is not only acceptable but
may even be necessary if the safety and interest of the student population,
doubtless a legitimate concern of the government, are to be promoted and
protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's
schoolchildren is as important as enhancing efficient enforcement of the
Nation's laws against the importation of drugs"; the necessity for the State to
act is magnified by the fact that the effects of a drug - infested school are
visited not just upon the users, but upon the entire student body and
faculty.22 Needless to stress, the random testing scheme provided under the
law argues against the idea that the testing aims to incriminate unsuspecting
individual students.

Just as in the case of secondary and tertiary level students, the mandatory but
random drug test prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is justifiable, albeit not exactly for the
same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable
cause, is unreasonable, an unwarranted intrusion of the individual right to
privacy,"23 has failed to show how the mandatory, random, and suspicionless
drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented search under Art. III, Secs. 1
and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration. Consider
what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made

various rulings on the constitutionality of mandatory drug tests in the
school and the workplaces. The US courts have been consistent in their
rulings that the mandatory drug tests violate a citizen's constitutional
right to privacy and right against unreasonable search and seizure.
They are quoted extensively hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to
privacy means the right to be free from unwarranted exploitation of one's
person or from intrusion into one's private activities in such a way as to cause
humiliation to a person's ordinary sensibilities. 27 And while there has been
general agreement as to the basic function of the guarantee against
unwarranted search, "translation of the abstract prohibition against
‘unreasonable searches and seizures' into workable broad guidelines for the
decision of particular cases is a difficult task," to borrow from C. Camara v.
Municipal Court.28 Authorities are agreed though that the right to privacy yields
to certain paramount rights of the public and defers to the state's exercise of
police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and
as has been held, "reasonableness" is the touchstone of the validity of a
government search or intrusion.30 And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion
of some compelling state interest.31 In the criminal context, reasonableness
requires showing of probable cause to be personally determined by a judge.
Given that the drug - testing policy for employees--and students for that
matter--under RA 9165 is in the nature of administrative search needing what
was referred to inVernonia as "swift and informal disciplinary procedures," the
probable - cause standard is not required or even practicable. Be that as it
may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office
or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing
requirement. The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in
fine, reduced; and a degree of impingement upon such privacy has been
upheld.

Just as defining as the first factor is the character of the intrusion authorized
by the challenged law. Reduced to a question form, is the scope of the search
or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the
enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165
and its implementing rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating
experience. While every officer and employee in a private establishment is
under the law deemed forewarned that he or she may be a possible subject of
a drug test, nobody is really singled out in advance for drug testing. The goal
is to discourage drug use by not telling in advance anyone when and who is to
be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes
what, in Ople, is a narrowing ingredient by providing that the employees
concerned shall be subjected to "random drug test as contained in the
company's work rules and regulations x x x for purposes of reducing the risk in
the work place."

For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employee's privacy and dignity.
As to the mechanics of the test, the law specifies that the procedure shall
employ two testing methods, i.e., the screening test and the confirmatory test,
doubtless to ensure as much as possible the trustworthiness of the results.
But the more important consideration lies in the fact that the test shall be
conducted by trained professionals in access - controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results
tampering and to ensure an accurate chain of custody.33 In addition, the IRR
issued by the DOH provides that access to the drug results shall be on the
"need to know" basis;34 that the "drug test result and the records shall be
[kept] confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not oblige the
employer concerned to report to the prosecuting agencies any information or
evidence relating to the violation of the Comprehensive Dangerous Drugs
Act received as a result of the operation of the drug testing. All told, therefore,
the intrusion into the employees' privacy, under RA 9165, is accompanied by
proper safeguards, particularly against embarrassing leakages of test results,
and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in

the country and thus protect the well - being of the citizens, especially the
youth, from the deleterious effects of dangerous drugs. The law intends to
achieve this through the medium, among others, of promoting and resolutely
pursuing a national drug abuse policy in the workplace via a mandatory
random drug test.36 To the Court, the need for drug testing to at least minimize
illegal drug use is substantial enough to override the individual's privacy
interest under the premises. The Court can consider that the illegal drug
menace cuts across gender, age group, and social - economic lines. And it
may not be amiss to state that the sale, manufacture, or trafficking of illegal
drugs, with their ready market, would be an investor's dream were it not for
the illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution of a
notorious drug trafficker. The state can no longer assume a laid back stance
with respect to this modern - day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of preventing
and deterring drug use among employees in private offices, the threat of
detection by random testing being higher than other modes. The Court holds
that the chosen method is a reasonable and enough means to lick the
problem.

Taking into account the foregoing factors, i.e., the reduced expectation of
privacy on the part of the employees, the compelling state concern likely to be
met by the search, and the well - defined limits set forth in the law to properly
guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case,
reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and

employees also labor under reasonable supervision and restrictions imposed
by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service.37 And if RA 9165
passes the norm of reasonableness for private employees, the more reason
that it should pass the test for civil servants, who, by constitutional command,
are required to be accountable at all times to the people and to serve them
with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the

ground of undue delegation of power hardly commends itself for concurrence.
Contrary to its position, the provision in question is not so extensively drawn
as to give unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug testing for
students of secondary and tertiary schools and officers/employees of
public/private offices should be conducted. It enumerates the persons who
shall undergo drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student handbook and
with notice to parents. On the part of officers/employees, the testing shall take
into account the company's work rules. In either case, the random procedure
shall be observed, meaning that the persons to be subjected to drug test shall
be picked by chance or in an unplanned way. And in all cases, safeguards
against misusing and compromising the confidentiality of the test results are
established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in

consultation with the DOH, Department of the Interior and Local Government,
Department of Education, and Department of Labor and Employment, among
other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be
subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools
and employers have unchecked discretion to determine how often, under what
conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the

constitutional landscape.39 In the face of the increasing complexity of the task
of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to delegation
of power, or entrusting to administrative agencies the power of subordinate
legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds
no valid justification for mandatory drug testing for persons accused of crimes.
In the case of students, the constitutional viability of the mandatory, random,
and suspicionless drug testing for students emanates primarily from the
waiver by the students of their right to privacy when they seek entry to the
school, and from their voluntarily submitting their persons to the parental
authority of school authorities. In the case of private and public employees,
the constitutional soundness of the mandatory, random, and suspicionless
drug testing proceeds from the reasonableness of the drug test policy and
requirement.

We find the situation entirely different in the case of persons charged before
the public prosecutor's office with criminal offenses punishable with six (6)
years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are "randomness" and "suspicionless." In the case of
persons charged with a crime before the prosecutor's office, a mandatory drug
testing can never be random or suspicionless. The ideas of randomness and
being suspicionless are antithetical to their being made defendants in a
criminal complaint. They are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime are charged, they
are singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to
privacy.40 To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a
persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to incriminate
themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658
and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 as UNCONSTITUTIONAL; and toPARTIALLY GRANT the petition in
G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) ofRA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All
concerned agencies are, accordingly, permanently enjoined from
implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

REGHIS M. ROMERO II, G.R. No. 174105

EDMOND Q. SESE,
LEOPOLDO T. SANCHEZ, Present:
REGHIS M. ROMERO III,
MICHAEL L. ROMERO, PUNO, C.J.,
NATHANIEL L. ROMERO, QUISUMBING,
and JEROME R. CANLAS, YNARES-SANTIAGO,
Petitioners, CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
SENATOR JINGGOY E. ESTRADA BRION, and
and SENATE COMMITTEE ON PERALTA, JJ.
LABOR, EMPLOYMENT
AND HUMAN RESOURCES Promulgated:
DEVELOPMENT,
Respondents. April 2, 2009
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

At issue once again is Section 21, Article VI of the 1987 Constitution which
provides:

The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.

The Case

This is a petition for prohibition with application for temporary restraining

order (TRO) and preliminary injunction under Rule 65, assailing the
constitutionality of the invitations and other compulsory processes issued by the
Senate Committee on Labor, Employment, and Human Resources Development
(Committee) in connection with its investigation on the investment of Overseas
Workers Welfare Administration (OWWA) funds in the Smokey Mountain project.

The Facts

On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc.,
received from the Committee an invitation,[1] signed by the Legislative Committee
Secretary, which pertinently reads as follows:

Dear Mr. Romero:

Pursuant to P.S. Resolution No. 537, entitled: RESOLUTION DIRECTING THE

LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE
LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND
OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE
SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86
MILLION and P.S. Resolution No. 543, entitled: RESOLUTION DIRECTING
THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING
INQUIRY IN AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF
 P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN PRESIDENT
FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND
R-II BUILDERS OWNER REGHIS ROMERO II, x x x the Committee on Labor,
Employment and Human Resources Development chaired by Sen. Jinggoy
Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the 23rd day of
August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate of the Philippines,
Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in the review
and possible amendments to the pertinent provisions of R.A. 8042, the Migrant
Workers Act and to craft a much needed legislation relative to the stated subject
matter and purpose of the aforementioned Resolutions.

By virtue of the power vested in Congress by Section 21, Article VI of 1987

Constitution regarding inquiries in aid of legislation, may we have the privilege
of inviting you to the said hearing to shed light on any matter, within your
knowledge and competence, covered by the subject matter and purpose of the
inquiry. Rest assured that your rights, when properly invoked and not unfounded,
will be duly respected. (Emphasis in the original.)

In his letter-reply[2] dated August 18, 2006, petitioner Romero II requested to be

excused from appearing and testifying before the Committee at its scheduled
hearings of the subject matter and purpose of Philippine Senate (PS) Resolution
Nos. 537 and 543. He predicated his request on grounds he would later
substantially reiterate in this petition for prohibition.

On August 28, 2006, the Committee sent petitioner Romero II a letter

informing him that his request, being unmeritorious, was denied.[3] On the same
date, invitations were sent to each of the other six petitioners, then members of the
Board of Directors of R-II Builders, Inc., requesting them to attend the September
4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as
Chairperson of the Committee, caused the service of a subpoena ad
testificandum[4] on petitioner Romero II directing him to appear and testify before
the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate
resolutions. The Committer later issued separate subpoenas[5] to other petitioners,
albeit for a different hearing date.

On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No.
174105, seeking to bar the Committee from continuing with its inquiry and to
enjoin it from compelling petitioners to appear before it pursuant to the invitations
thus issued.
Failing to secure the desired TRO sought in the petition, petitioner Romero II
appeared at the September 4, 2006 Committee investigation.

Two days after, petitioner Romero II filed a Manifestation with Urgent Plea
for a TRO[6] alleging, among others, that: (1) he answered questions concerning the
investments of OWWA funds in the Smokey Mountain project and how much of
OWWAs original investment had already been paid; (2) when Senator Estrada
called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts
and issues he raised with the Court in Chavez v. National Housing
Authority,[7] none of which were related to the subject of the inquiry; and (3) when
Senator Estrada adjourned the investigation, he asked petitioners Romero II and
Canlas to return at the resumption of the investigation.

The manifestation was followed by the filing on September 19, 2006 of

another urgent motion for a TRO in which petitioners imputed to the Committee
the intention to harass them as, except for petitioner Romero II, none of them had
even been mentioned in relation to the subject of the investigation.

Meanwhile, respondents, in compliance with our September 5, 2006

Resolution that ordered them to submit a comment on the original plea for a TRO,
interposed an opposition,[8] observing that the Senates motives in calling for an
investigation in aid of legislation were a political question. They also averred that
the pendency of Chavez is not sufficient ground to divest the respondents of their
jurisdiction to conduct an inquiry into the matters alleged in the petition.

In this petition, petitioners in gist claim that: (1) the subject matter of the
investigation is sub judice owing to the pendency of the Chavez petition; (2) since
the investigation has been intended to ascertain petitioners criminal liability for
plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and
testify in violation of their rights against self-incrimination; and (4) unless the
Court immediately issues a TRO, some or all of petitioners would be in danger of
being arrested, detained, and forced to give testimony against their will, before the
Court could resolve the issues raised in G.R. No. 164527.

In their Comment dated October 17, 2006,[9] respondents made a distinction

between the issues raised in Chavez and the subject matter of the Senate
resolutions, nixing the notion of sub judice that petitioners raised at every possible
turn.Respondents averred that the subject matter of the investigation focused on the
alleged dissipation of OWWA funds and the purpose of the probe was to aid the
Senate determine the propriety of amending Republic Act No. 8042 or The
Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the
future. They likewise raised the following main arguments: (1) the proposed
resolutions were a proper subject of legislative inquiry; and (2) petitioners right
against self-incrimination was well-protected and could be invoked when
incriminating questions were propounded.

On December 28, 2006, petitioners filed their Reply[10] reiterating the

arguments stated in their petition, first and foremost of which is: Whether or not
the subject matter of the Committees inquiry is sub judice.

The Courts Ruling

The Court resolves to dismiss the instant petition.

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

Petitioners contend that the subject matter of the legislative inquiry is sub judice in
view of the Chavez petition.

The sub judice rule restricts comments and disclosures pertaining to judicial
proceedings to avoid prejudging the issue, influencing the court, or obstructing the
administration of justice. A violation of the sub judice rule may render one liable
for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court.[11] The
rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez:
[I]t is a traditional conviction of civilized society everywhere that courts and
juries, in the decision of issues of fact and law should be immune from every
extraneous influence; that facts should be decided upon evidence produced in
court; and that the determination of such facts should be uninfluenced by bias,
prejudice or sympathies.[12]

Chavez, assuming for argument that it involves issues subject of the respondent
Committees assailed investigation, is no longer sub judice or before a court or
judge for consideration.[13] For by an en banc Resolution dated July 1, 2008, the
Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the
petitioner in Chavez, for reconsideration of the Decision of the Court dated August
15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect
of Chavez and resist, on that ground, the assailed congressional invitations and
subpoenas. The sub judice issue has been rendered moot and academic by the
supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No.
164527. An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy, so that a determination of the issue would be without
practical use and value. In such cases, there is no actual substantial relief to which
the petitioner would be entitled and which would be negated by the dismissal of
the petition.[14] Courts decline jurisdiction over such cases or dismiss them on the
ground of mootness, save in certain exceptional instances,[15] none of which,
however, obtains under the premises.

Thus, there is no more legal obstacleon the ground of sub judice, assuming it is
invocableto the continuation of the Committees investigation challenged in this
proceeding.

At any rate, even assuming hypothetically that Chavez is still pending final
adjudication by the Court, still, such circumstance would not bar the continuance
of the committee investigation. What we said in Sabio v. Gordon suggests as
much:

The same directors and officers contend that the Senate is barred from
inquiring into the same issues being litigated before the Court of Appeals and
the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation provide that the filing or pendency of any
prosecution or administrative action should not stop or abate any inquiry to carry
out a legislative purpose.[16]

A legislative investigation in aid of legislation and court proceedings has

different purposes. On one hand, courts conduct hearings or like adjudicative
procedures to settle, through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as tools to enable the
legislative body to gather information and, thus, legislate wisely and
effectively;[17] and to determine whether there is a need to improve existing laws or
enact new or remedial legislation,[18] albeit the inquiry need not result in any
potential legislation. On-going judicial proceedings do not preclude congressional
hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v.
Senate Committee on Banks, Financial Institutions and Currencies (Standard
Chartered Bank) provides the following reason:
[T]he mere filing of a criminal or an administrative complaint before a court
or quasi-judicial body should not automatically bar the conduct of legislative
investigation. Otherwise, it would be extremely easy to subvert any
 intended inquiry by Congress through the convenient ploy of instituting a
criminal or an administrative complaint. Surely, the exercise of sovereign
legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or administrative
investigation.

As succinctly stated in x x x Arnault v. Nazareno

[T]he power of inquirywith process to enforce itis an essential and

appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite informationwhich
is not infrequently truerecourse must be had to others who possess it.[19]

While Sabio and Standard Chartered Bank advert only to pending criminal
and administrative cases before lower courts as not posing a bar to the continuation
of a legislative inquiry, there is no rhyme or reason that these cases doctrinal
pronouncement and their rationale cannot be extended to appealed cases and
special civil actions awaiting final disposition before this Court.

The foregoing consideration is not all. The denial of the instant recourse is
still indicated for another compelling reason. As may be noted, PS Resolution Nos.
537 and 543 were passed in 2006 and the letter-invitations and subpoenas directing
the petitioners to appear and testify in connection with the twin resolutions were
sent out in the month of August 2006 or in the past Congress. On the postulate that
the Senate of each Congress acts separately and independently of the Senate before
and after it, the aforesaid invitations and subpoenas are considered functos
oficio and the related legislative inquiry conducted is, for all intents and purposes,
terminated. In this regard, the Court draws attention to its pronouncements
embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri
v. Senate Committee on Accountability of Public Officers and Investigations:

Certainly, x x x the Senate as an institution is continuing, as it is not

dissolved as an entity with each national election or change in the composition of
its members. However, in the conduct of its day-to-day business, the Senate of
each Congress acts separately and independently of the Senate before it. The
Rules of the Senate itself confirms this when it states:

xxxx
 SEC. 123. Unfinished business at the end of the session shall be taken up
at the next session in the same status.

All pending matters and proceedings shall terminate upon the

expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present[ed] for the first time.

Undeniably from the foregoing, all pending matters and proceedings,

i.e., unpassed bills and even legislative investigations, of the Senate of a
particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to
take up such unfinished matters, not in the same status, but as if presented for
the first time. The logic and practicality of such rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have
a different composition as that of the previous Congress) should not be bound by
the acts and deliberations of the Senate of which they had no part. x x x
(Emphasis added.)

Following the lessons of Neri, as reiterated in Garcillano v. The House of

Representatives Committees on Public Information, Public Order and Safety, et
al.,[20] it can very well be stated that the termination of the assailed investigations
has veritably mooted the instant petition. This disposition becomes all the more
impeccable, considering that the Senate of the present Congress has not, per
available records, opted to take up anew, as an unfinished matter, its inquiry into
the investment of OWWA funds in the Smokey Mountain project.

With the foregoing disquisition, the Court need not belabor the other issues
raised in this recourse. Suffice it to state that when the Committee issued
invitations and subpoenas to petitioners to appear before it in connection with its
investigation of the aforementioned investments, it did so pursuant to its authority
to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec.
21 of the Constitution, which was quoted at the outset. And the Court has no
authority to prohibit a Senate committee from requiring persons to appear and
testify before it in connection with an inquiry in aid of legislation in accordance
with its duly published rules of procedure.[21] Sabio emphasizes the importance of
the duty of those subpoenaed to appear before the legislature, even if incidentally
incriminating questions are expected to be asked:
Anent the right against self-incrimination, it must be emphasized that [this
right may be] invoked by the said directors and officers of Philcomsat x x x only
when the incriminating question is being asked, since they have no way of
knowing in advance the nature or effect of the questions to be asked of
them. That this right may possibly be violated or abused is no ground for
 denying respondent Senate Committees their power of inquiry. The consolation is
that when this power is abused, such issue may be presented before the courts.

xxxx

Let it be stressed at this point that so long as the constitutional

rights of witnesses x x x will be respected by respondent Senate
Committees, it [is] their duty to cooperate with them in their efforts to
obtain the facts needed for intelligent legislative action. The
unremitting obligation of every citizen is to respond to subpoenae, to
respect the dignity of the Congress and its Committees, and to testify
fully with respect to matters within the realm of proper
investigation.[22] (Emphasis supplied.)

As a matter of long and sound practice, the Court refrains from touching on the
issue of constitutionality except when it is unavoidable and is the very lis
mota[23] of the controversy. So it must be here. Indeed, the matter of the
constitutionality of the assailed Committee invitations and subpoenas issued vis--
vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has
ceased to be a justiciable controversy, having been rendered moot and academic by
supervening events heretofore indicated. In short, there is no more investigation to
be continued by virtue of said resolutions; there is no more investigation the
constitutionality of which is subject to a challenge.

WHEREFORE, the petition is DENIED.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

G.R. No. 180643 March 25, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, respondents.

DECISION

LEONARDO-DE CASTRO, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter1 dated November 22, 2007 and contempt Order2 dated January 30, 2008 concurrently
issued by respondent

Senate Committees on Accountability of Public Officers and Investigations,3 Trade and

Commerce,4 and National Defense and Security5 against petitioner Romulo L. Neri, former Director
General of the National Economic and Development Authority (NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of
China.

In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:

(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON
TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF
LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER
PERTINENT LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE
ZTE CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT
AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS
OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE
CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY
LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled
RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION
 OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.

At the same time, the investigation was claimed to be relevant to the consideration of three (3)
pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN
THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING
SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184,
OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND
FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING
SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS
AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE
AGREEMENTS.

Respondent Committees initiated the investigation by sending invitations to certain personalities and
cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned
to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended
only the September 26 hearing, claiming he was "out of town" during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the approval of the NBN
Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer
(BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-
government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He
disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further narrated that he
informed President Arroyo about the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on what they discussed about the NBN Project, petitioner
refused to answer, invoking "executive privilege". In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN Project,6 (b) whether or not she directed
him to prioritize it,7 and (c) whether or not she directed him to approve.8

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring

him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested
respondent Committees to dispense with petitioner's testimony on the ground of executive privilege.
The pertinent portion of the letter reads:
 With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear
and testify again on 20 November 2007 before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to
consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita,
488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on
the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which these information were conveyed to
the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on
November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should
not be cited in contempt. The Letter reads:
 Since you have failed to appear in the said hearing, the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National
Defense and Security require you to show cause why you should not be cited in contempt
under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers
and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his
intention to ignore the Senate hearing and that he thought the only remaining questions were those
he claimed to be covered by executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the
task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay
during the hearing on 26 September 2007. During said hearing, I answered all the questions
that were asked of me, save for those which I thought was covered by executive privilege,
and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In
good faith, after that exhaustive testimony, I thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege. Hence, his request
that my presence be dispensed with.

Be that as it may, should there be new matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so
that as a resource person, I may adequately prepare myself.

In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating,
among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2)
his conversation with President Arroyo dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal involving high government officials
and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter
ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he
needs to clarify so that he may adequately prepare for the hearing.

In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his

request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and
give his testimony. The said Order states:

ORDER

For failure to appear and testify in the Committee's hearing on Tuesday, September 18,
2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by
him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007),
herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees
 and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until
such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a
return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.

On the same date, petitioner moved for the reconsideration of the above Order.9 He insisted that he
has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, however, respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he filed on
December 7, 2007. According to him, this should restrain respondent Committees from enforcing the
show cause Letter "through the issuance of declaration of contempt" and arrest.

In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1,
2008 aSupplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction),
seeking to restrain the implementation of the said contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring the parties to observe the status
quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees
to file their comment.

Petitioner contends that respondent Committees' show cause Letter and contempt Order were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are "candid discussions meant to explore options in
making policy decisions." According to him, these discussions "dwelt on the impact of the
bribery scandal involving high government officials on the country's diplomatic relations and
economic and military affairs and the possible loss of confidence of foreign investors and
lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the
order of the President and within the parameters laid down in Senate v. Ermita10 and United States v.
Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made

to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of
Conduct and Ethical Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130
of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material
and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's
arrest; and (4) petitioner has not come to court with clean hands.

In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the
principle of 'executive privilege'?

1.a Did Executive Secretary Ermita correctly invoke the principle of executive
privilege, by order of the President, to cover (i) conversations of the President in the
exercise of her executive and policy decision-making and (ii) information, which
 might impair our diplomatic as well as economic relations with the People's Republic
of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his
conversations with the President on the NBN contract on his assertions that the said
conversations "dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in
the Philippines" x x x within the principles laid down in Senate v. Ermita (488 SCRA
1 [2006])?

1.c Will the claim of executive privilege in this case violate the following provisions of
the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving public
interest)

Sec. 7, Art. III (The right of the people to information on matters of public
concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed)

and the due process clause and the principle of separation of powers?

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of
petitioner for non-compliance with the subpoena?

After the oral argument, the parties were directed to manifest to the Court within twenty-four (24)
hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his
testimony before the Senate Committees to answer the other questions of the Senators without
prejudice to the decision on the merits of this pending petition. It was understood that petitioner may
invoke executive privilege in the course of the Senate Committees proceedings, and if the
respondent Committees disagree thereto, the unanswered questions will be the subject of a
supplemental pleading to be resolved along with the three (3) questions subject of the present
petition.14 At the same time, respondent Committees were directed to submit several pertinent
documents.15

The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March
5, 2008. As to the required documents, the Senate and respondent Committees manifested that they
would not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it
has never been the "historical and traditional legislative practice to keep them."16 They instead
submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings.

On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene
and to Admit Attached Memorandum, founded on the following arguments:
 (1) The communications between petitioner and the President are covered by the principle of
"executive privilege."

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the
law-making body's power to conduct inquiries in aid of legislation as laid down in Section 21,
Article VI of the Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance
with theSubpoena dated November 13, 2007.

The Court granted the OSG's motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive
Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees
to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita17 when they are invited to legislative inquiries in aid of legislation.

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by
executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes

imperative. Senate draws in bold strokes the distinction between
the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22,
respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or as the rules of each House shall provide,
appear before and be heard by such House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters related thereto.
When the security of the state or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each
other, they should not be considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may
be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question
hour, the objective of which is to obtain information in pursuit of Congress' oversight
function.19 Simply stated, while both powers allow Congress or any of its committees to conduct
inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike
in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The
Court's pronouncement in Senate v. Ermita20 is clear:

When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that of
the President to whom, as Chief Executive, such department heads must give a report of
their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may onlyrequest their appearance. Nonetheless,
when the inquiry in which Congress requires their appearance is 'in aid of legislation' under
Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process

only to the extent that it is performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under
section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
(Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been
settled inSenate v. Ermita, when it held:

As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant
to the Court's certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the
proposition that a legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change.21 Inevitably, adjunct
thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be
valid, it is imperative that it is done in accordance with the Senate or House duly published rules of
procedure and that the rights of the persons appearing in or affected by such inquiries be respected.
The power extends even to executive officials and the only way for them to be exempted is through
a valid claim of executive privilege.22 This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation of E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our
concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike
the United States which has further accorded the concept with statutory status by enacting
the Freedom of Information Act23 and theFederal Advisory Committee Act,24 the Philippines has
retained its constitutional origination, occasionally interpreted only by this Court in various cases.
The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter
dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v.
Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464.

While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of
executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court
to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege.28 In United States v. Nixon,29 the U.S. Court recognized a great public
interest in preserving "the confidentiality of conversations that take place in the President's
performance of his official duties." It thus considered presidential communications as
"presumptively privileged." Apparently, the presumption is founded on the "President's
generalized interest in confidentiality." The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide "the President and those who assist him… with
freedom to explore alternatives in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except privately."

In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential communications privilege and, the other is
the deliberative process privilege. The former pertains to "communications, documents or
other materials that reflect presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes 'advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated."

Accordingly, they are characterized by marked distinctions. Presidential communications

privilege applies todecision-making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the constitutional principle of
separation of power and the President's unique constitutional role; the second on common law
privilege. Unlike the deliberative process privilege, thepresidential communications
privilege applies to documents in their entirety, and covers final and post-decisional materials
as well as pre-deliberative ones31 As a consequence, congressional or judicial negation of
the presidential communications privilege is always subject to greater scrutiny than denial of
thedeliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In Re:
Sealed Caseconfines the privilege only to White House Staff that has "operational proximity" to direct
presidential decision-making. Thus, the privilege is meant to encompass only those functions that
form the core of presidential authority, involving what the court characterized as "quintessential and
non-delegable Presidential power," such as commander-in-chief power, appointment and removal
power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and
other public officers, the power to negotiate treaties, etc.32

The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In Re: Sealed
Case principles. There, while the presidential decision involved is the exercise of the President's
pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the
Pardon Attorney were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that

functionally those officials were performing a task directly related to the President's pardon power,
but concluded that an organizational test was more appropriate for confining the potentially broad
sweep that would result from the In Re: Sealed Case's functional test. The majority concluded that,
the lesser protections of the deliberative process privilege would suffice. That privilege was,
however, found insufficient to justify the confidentiality of the 4,341 withheld documents.

But more specific classifications of communications covered by executive privilege are made in older
cases. Courts ruled early that the Executive has a right to withhold documents that might
reveal military or state secrets,34 identity of government informers in some
circumstances,,35 and information related to pending investigations.36 An area where the
privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export
Corp.37 the U.S. Court, citing President George Washington, pronounced:

The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated would
be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course
all the papers respecting a negotiation with a foreign power would be to establish a
dangerous precedent.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38,
this Court held that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,39 there is also a
recognition of the confidentiality of Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications
privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly recognized
in cases where the subject of inquiry relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under our Constitution, the President is
the repository of the commander-in-chief,40 appointing,41 pardoning,42 and diplomatic43 powers.
Consistent with the doctrine of separation of powers, the information relating to these powers may
enjoy greater confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the
elements ofpresidential communications privilege, to wit:

1) The protected communication must relate to a "quintessential and non-delegable

presidential power."

2) The communication must be authored or "solicited and received" by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in "operational
proximity" with the President.

3) The presidential communications privilege remains a qualified privilege that may be

overcome by a showing of adequate need, such that the information sought "likely contains
important evidence" and by the unavailability of the information elsewhere by an appropriate
investigating authority.44

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions "fall under conversation and
correspondence between the President and public officials" necessary in "her executive and policy
decision-making process" and, that "the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases
are presidential communications privilege and executive privilege on matters relating
to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three
(3) questions are covered by the presidential communications privilege. First, the
communications relate to a "quintessential and non-delegable power" of the President, i.e. the power
to enter into an executive agreement with other countries. This authority of the President to enter
into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.45 Second, the communications are "received" by a close
advisor of the President. Under the "operational proximity" test, petitioner can be considered a close
advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing against other
interest. In other words, confidentiality in executive privilege is not absolutely protected by the
Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.

The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held
that presidential communications are presumptively privileged and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to conversations. The
courts are enjoined to resolve the competing interests of the political branches of the government "in
the manner that preserves the essential functions of each Branch."47 Here, the record is bereft of any
categorical explanation from respondent Committees to show a compelling or citical need for the
answers to the three (3) questions in the enactment of a law. Instead, the questions veer more
towards the exercise of the legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of
Congress may be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will
depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a possible
disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon48 that "demonstrated, specific need for evidence in pending criminal trial" outweighs the
President's "generalized interest in confidentiality." However, the present case's distinction with
the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the
information is requested and it is the demands of due process of law and the fair administration of
criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to
"limit the scope of its decision." It stressed that it is "not concerned here with the balance
between the President's generalized interest in confidentiality x x x and congressional
demands for information." Unlike in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of
the claim of executive privilege depends not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made. Furthermore, in Nixon, the President did not
interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In
the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds
of presidential communications privilege in relation to her executive and policy decision-making
process and diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of matters which may
present a conflict of interest that may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present
Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 it was held that since an impeachment proceeding had been initiated by a House
Committee, the Senate Select Committee's immediate oversight need for five presidential tapes
should give way to the House Judiciary Committee which has the constitutional authority to inquire
into presidential impeachment. The Court expounded on this issue in this wise:

It is true, of course, that the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees
from investigations by the proper governmental institutions into possible criminal wrongdoing.
The Congress learned this as to its own privileges in Gravel v. United States, as did the
judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon
v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption
favoring confidentiality turned, not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment. Here also our task requires and
our decision implies no judgment whatever concerning possible presidential
involvement in culpable activity. On the contrary, we think the sufficiency of the
Committee's showing must depend solely on whether the subpoenaed evidence is
demonstrably critical to the responsible fulfillment of the Committee's functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it
'would aid in a determination whether legislative involvement in political campaigns is
necessary' and 'could help engender the public support needed for basic reforms in our
electoral system.' Moreover, Congress has, according to the Committee, power to oversee
 the operations of the executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access
to the subpoenaed tapes.

We turn first to the latter contention. In the circumstances of this case, we need neither deny
that the Congress may have, quite apart from its legislative responsibilities, a general
oversight power, nor explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution, the House Committee
on the Judiciary has begun an inquiry into presidential impeachment. The investigative
authority of the Judiciary Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence indicating that Congress
itself attaches any particular value to this interest. In these circumstances, we think
the need for the tapes premised solely on an asserted power to investigate and inform
cannot justify enforcement of the Committee's subpoena.

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like functions. While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable. We
see no comparable need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)

Respondent Committees further contend that the grant of petitioner's claim of executive privilege
violates the constitutional provisions on the right of the people to information on matters of public
concern.50 We might have agreed with such contention if petitioner did not appear before them at all.
But petitioner made himself available to them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered by his claim of executive
privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article III
provides:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of
these laws are Section 7 of Republic Act (R.A.) No. 6713,51 Article 22952 of the Revised Penal Code,
Section 3 (k)53 of R.A. No. 3019, and Section 24(e)54 of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as confidential55 and what our Constitution
considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized
public interest in the confidentiality of certain information. We find the information subject of this case
belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation cannot be equated with the people's right to public information. The
former cannot claim that every legislative inquiry is an exercise of the people's right to information.
The distinction between such rights is laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of people to information on matters of
public concern. For one, the demand of a citizen for the production of documents pursuant to
his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress, not to an
individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does

not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.

The members of respondent Committees should not invoke as justification in their exercise of power
a right properly belonging to the people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it may, the right to information
must be balanced with and should give way, in appropriate cases, to constitutional precepts
particularly those pertaining to delicate interplay of executive-legislative powers and privileges which
is the subject of careful review by numerous decided cases.

B- The Claim of Executive Privilege

is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal
claim of privilege, lodged by the head of the department which has control over the matter."56 A
formal and proper claim of executive privilege requires a "precise and certain reason" for preserving
their confidentiality.57

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that "this Office is constrained
to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That
is more than enough compliance. InSenate v. Ermita, a less categorical letter was even adjudged to
be sufficient.

With regard to the existence of "precise and certain reason," we find the grounds relied upon by
Executive Secretary Ermita specific enough so as not "to leave respondent Committees in the dark
on how the requested information could be classified as privileged." The case of Senate v.
Ermita only requires that an allegation be made "whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be
specified. The enumeration is not even intended to be comprehensive."58 The following statement of
grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which these information were conveyed to
the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to
state the reasons for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal
department.

II

Respondent Committees Committed Grave Abuse of Discretion

in Issuing the Contempt Order

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law."60

It must be reiterated that when respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were the three (3) questions he
claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the President and specifying the reasons why
his conversations with President Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided he "be furnished in
advance" copies of the questions. Without responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30, 2008, citing him in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-
At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a
motion for reconsideration, informing respondent Committees that he had filed the present petition
for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view
of five (5) reasons.

First, there being a legitimate claim of executive privilege, the issuance of the contempt Order
suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.
Ermita that the invitations should contain the "possible needed statute which prompted the need for
the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21
and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are respected as mandated by said Section 21
and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated
demands, respondent Committees did not send him an advance list of questions.

Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals
that only a minority of the members of the Senate Blue Ribbon Committee was present during the
deliberation. 61 Section 18 of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobeys any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any of its members."

Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members
who did not actually participate in the deliberation were made to sign the contempt Order. Thus,
there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote
the pertinent portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either
a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do
not have the sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away because…Again, our Rules provide
that any one held in contempt and ordered arrested, need the concurrence of a
majority of all members of the said committee and we have three committees
conducting this.

So thank you very much to the members…

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give
him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue Ribbon Committee is the lead
committee, and therefore, it should have preference in enforcing its own decisions.
Meaning to say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that once we decide
here, we enforce what we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the so-called "consultation"
that inevitably will have to take place if we follow the premise that has been explained.

So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the
lead committee here, and therefore, the will of the lead committee prevails over all the other,
you, know reservations that other committees might have who are only secondary or even
tertiary committees, Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all
its members may punish for contempt any witness before it who disobeys any order of the
Committee."
 So the Blue Ribbon Committee is more than willing to take that responsibility. But we only
have six members here today, I am the seventh as chair and so we have not met that
number. So I am merely stating that, sir, that when we will prepare the documentation, if a
majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either
in caucus or in session asked the other members to sign. And once the signatures are
obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken.
But I'd like to advert to the fact that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate committee hearing provide that
quorum, and therefore there is more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any
event, the signatures that will follow by the additional members will only tend to strengthen
the determination of this Committee to put its foot forward – put down on what is happening
in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy,
you know, the summons of this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know,
the institution that we are representing because the alternative will be a disaster for all of us,
Mr. Chairman. So having said that, I'd like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions
of the Minority Leader. But let me very respectfully disagree with the legal
requirements. Because, yes, we can have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue
Ribbon Committee, there is a need for a majority of all members if it is a case of
contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee,
which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that
we should push for this and show the executive branch that the well-decided – the issue has
been decided upon the Sabio versus Gordon case. And it's very clear that we are all allowed
to call witnesses. And if they refure or they disobey not only can we cite them in contempt
and have them arrested. x x x 62

Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly
published rules of procedure." We quote the OSG's explanation:

The phrase 'duly published rules of procedure' requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate's membership, the composition of the Senate also changes
by the end of each term. Each Senate may thus enact a different set of rules as it may deem
fit. Not having published its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore, procedurally infirm.

And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It
must be pointed out that respondent Committees did not first pass upon the claim of executive
privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as
"unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times
his readiness to testify before respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive privilege. It behooves respondent
Committees to first rule on the claim of executive privilege and inform petitioner of their finding
thereon, instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly,
respondent Committees' actions constitute grave abuse of discretion for being arbitrary and for
denying petitioner due process of law. The same quality afflicted their conduct when they (a)
disregarded petitioner's motion for reconsideration alleging that he had filed the present petition
before this Court and (b) ignored petitioner's repeated request for an advance list of questions, if
there be any aside from the three (3) questions as to which he claimed to be covered by executive
privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly
with utmost self-restraint with the end in view of utilizing the same for correction and preservation of
the dignity of the court, not for retaliation or vindication.63 Respondent Committees should have
exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.

In this regard, it is important to mention that many incidents of judicial review could have been
avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine
of separation of powers is the mandate to observe respect to a co-equal branch of the government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it required the parties
to consider a proposal that would lead to a possible compromise. The accusation is far from the
truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar
cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional
crisis between the executive and legislative branches of government.

In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of
its desire to avoid a resolution that might disturb the balance of power between the two branches
and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for
further proceedings during which the parties are required to negotiate a settlement. In the
subsequent case of United States v. American Tel. &Tel Co.,65 it was held that "much of this spirit of
compromise is reflected in the generality of language found in the Constitution." It proceeded to
state:

Under this view, the coordinate branches do not exist in an exclusively adversary relationship
to one another when a conflict in authority arises. Rather each branch should take
cognizance of an implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particular fact situation.

It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of
dispatch and the immediate functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation required by the separation of
powers."

In rendering this decision, the Court emphasizes once more that the basic principles of constitutional
law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to
rule objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers
inherent in cases of this nature, thus:
 "some accident of immediate and overwhelming interest…appeals to the feelings and
distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which
makes what previously was clear seem doubtful, and before which even well settled
principles of law will bend."66

In this present crusade to "search for truth," we should turn to the fundamental constitutional
principles which underlie our tripartite system of government, where the Legislature enacts the law,
the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal,
coordinate and supreme within their respective spheres but, imbued with a system of checks and
balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these
constitutional principles at all times to keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives, even if it be in the search for
truth. This is the only way we can preserve the stability of our democratic institutions and uphold the
Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing
petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,

Azcuna, Tinga,Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

G.R. No. 142840 May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.

CONCURRING OPINION

DISSENTING OPINION

KAPUNAN, J.:

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional
requirement that "no person shall be a Member of the House of Representative unless he is a
natural-born citizen."1

Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente,
Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935
Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and
without the consent of the Republic of the Philippines, took an oath of allegiance to the United
States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63,
section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering service to or
accepting commission in the armed forces of a foreign country." Said provision of law reads:

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any
of the following ways and/or events:

xxx

(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such commission in,
the armed forces of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:

(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said
foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory with the consent
of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of
rendering said service, or acceptance of said commission, and taking the oath of allegiance
incident thereto, states that he does so only in connection with his service to said foreign
country; And provided, finally, That any Filipino citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign country under any of the circumstances
mentioned in paragraph (a) or (b), shall not be Republic of the Philippines during the period
of his service to, or commission in, the armed forces of said country. Upon his discharge
from the service of the said foreign country, he shall be automatically entitled to the full
enjoyment of his civil and politically entitled to the full enjoyment of his civil political rights as
a Filipino citizen x x x.

Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine
Corps.

On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under
Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of
Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over
petitioner Antonio Bengson III, who was then running for reelection. 1âwphi1.nêt

Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of
Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to
become a member of the House of Representatives since he is not a natural-born citizen as required
under Article VI, section 6 of the Constitution.4

On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and
declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May
1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in
its resolution dated April 27, 2000.6

Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following
grounds:
 1. The HRET committed serious errors and grave abuse of discretion, amounting to excess
of jurisdiction, when it ruled that private respondent is a natural-born citizen of the
Philippines despite the fact that he had ceased being such in view of the loss and
renunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting to excess
of jurisdiction, when it considered private respondent as a citizen of the Philippines despite
the fact he did not validly acquire his Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the
HRET committed serious errors and grave abuse of discretion, amounting to excess of
jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not
legally and constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine
citizenship.

Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he
lost h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to
reacquire the same by repatriation. He insists that Article citizens are those who are from birth with
out having to perform any act to acquire or perfect such citizenship.

Respondent on the other hand contends that he reacquired his status as natural-born citizen when
he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent
and inborn characteristic of being a natural-born citizen.

The petition is without merit.

The 1987 Constitution enumerates who are Filipino citizens as follow:

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973 of Filipino mother, who elect Philippine citizenship
upon reaching the age of majority, and

(4) Those who are naturalized in accordance with law.8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the
naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a
natural-born citizen thereof.9

As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from
birth without having to perform any act to acquire or perfect his Philippine citezenship."10

On the other hand, naturalized citizens are those who have become Filipino citizens through
naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic
Act No. 530.11 To be naturalized, an applicant has to prove that he possesses all the
qualifications12 and none of the disqualification13 provided by law to become a Filipino citizen. The
decision granting Philippine citizenship becomes executory only after two (2) years from its
promulgation when the court is satisfied that during the intervening period, the applicant has (1) not
left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been
convicted of any offense or violation of Government promulgated rules; or (4) committed any act
prejudicial to the interest of the nation or contrary to any Government announced policies.14

Filipino citizens who have lost their citizenship may however reacquire the same in the manner
provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which
Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation,
and (3) by direct act of Congress.15

Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of
initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as
amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is
governed by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to
reacquire Philippine citizenship must possess certain qualifications17 and none of the disqualification
mentioned in Section 4 of C.A. 473.18

Repatriation, on the other hand, may be had under various statutes by those who lost their
citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied
forces in World War II;20 (3) service in the Armed Forces of the United States at any other time,21 (4)
marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23

As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking
of an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil
Registry of the place where the person concerned resides or last resided.

In Angat v. Republic,24 we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person
desiring to reacquire Philippine citizenship would not even be required to file a petition in
court, and all that he had to do was to take an oath of allegiance to the Republic of the
Philippines and to register that fact with the civil registry in the place of his residence or
where he had last resided in the Philippines. [Italics in the original.25

Moreover, repatriation results in the recovery of the original nationality.26 This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.

In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed
Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A.
No. 2630, which provides:

Section 1. Any person who had lost his Philippine citizenship by rendering service to, or
accepting commission in, the Armed Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States citizenship, may reacquire
Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he resides or last resided in
 the Philippines. The said oath of allegiance shall contain a renunciation of any other
citizenship.

Having thus taken the required oath of allegiance to the Republic and having registered the same in
the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision,
respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status
which he acquired at birth as the son of a Filipino father.27 It bears stressing that the act of
repatriation allows him to recover, or return to, his original status before he lost his Philippine
citizenship.

Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to
perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its
decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973
Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without
having to perform any act to acquire or perfect his Philippine citizenship.

Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino
citizen birth and (2) he does not have to perform any act to obtain or perfect his Philippine
citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not
considered natural-born: (1) those who were naturalized and (2) those born before January 17,
1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship.
Those "naturalized citizens" were not considered natural-born obviously because they were not
Filipino at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino
mothers before the effectively of the 1973 Constitution were likewise not considered natural-born
because they also had to perform an act to perfect their Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers before the effectivity
of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as
natural-born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence:
"Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-
born citizens. It is apparent from the enumeration of who are citizens under the present Constitution
that there are only two classes of citizens: (1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to
undergo the process of naturalization to obtain Philippine citizenship, necessarily is natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who,
after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the reasons for the loss of
their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceeding in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all
contests relating to the election, returns, and qualifications of the members of the House.29 The
Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction" on the part of the latter.30 In the absence
thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of
the HRET nor to substitute the Court's judgement for that of the latter for the simple reason that it is
not the office of a petition for certiorari to inquire into the correctness of the assailed
decision.31 There is no such showing of grave abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, and JJ., concur.

Melo, Vitug, Mendoza, no part.

Panganiban, concurring opinion.

Quisumbing, Buena, De Leon, Jr., on leave.

Sandoval-Gutierrez, dissenting opinion.

Pardo, Gonzaga-Reyes, concur on this and the concurring opinion of J. Panganiban

Ynares-Santiago, certify majority opinion of J. Kapunan.

EN BANC

SENATOR BENIGNO G.R. No. 189793

SIMEON C. AQUINO
III and MAYOR JESSE Present:
ROBREDO,
Petitioners, PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
-versus- NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
COMMISSION ON DEL CASTILLO,
ELECTIONS represented by its ABAD,*
Chairman JOSE A.R. VILLARAMA, JR.,
MELO and its PEREZ, and
Commissioners, RENE V. MENDOZA, JJ.
SARMIENTO, NICODEMO
T. FERRER, LUCENITO N.
TAGLE, ARMANDO Promulgated:
VELASCO, ELIAS R.
YUSOPH AND GREGORIO April 7, 2010
LARRAZABAL,
Respondents.

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

DECISION

PEREZ, J.:

This case comes before this Court by way of a Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court. In this original action, petitioners
Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public
officers, taxpayers and citizens, seek the nullification as unconstitutional of
Republic Act No. 9716, entitled An Act Reapportioning the Composition of the
First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur
and Thereby Creating a New Legislative District From Such
Reapportionment. Petitioners consequently pray that the respondent Commission
on Elections be restrained from making any issuances and from taking any steps
relative to the implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264, and was signed into
law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on
31 October 2009, or fifteen (15) days following its publication in the Manila
Standard, a newspaper of general circulation.[1] In substance, the said law created
an additional legislative district for the Province of Camarines Sur by
reconfiguring the existing first and second legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to
have a population of 1,693,821,[2] distributed among four (4) legislative districts in
this wise:

District Municipalities/Cities Population

Del Gallego Libmanan

Ragay Minalabac
1st District Lupi Pamplona 417,304
Sipocot Pasacao
Cabusao San Fernando

Gainza Canaman
2nd District Milaor Camaligan 474,899
Naga Magarao
Pili Bombon
Ocampo Calabanga

Caramoan Sangay
Garchitorena San Jose
3rd District Goa Tigaon 372,548
Lagonoy Tinamba
Presentacion Siruma

Iriga Buhi
4th District Baao Bula
Balatan Nabua 429,070
Bato

Following the enactment of Republic Act No. 9716, the first and second districts
of Camarines Sur were reconfigured in order to create an additional legislative
district for the province. Hence, the first district municipalities of Libmanan,
Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second
district municipalities of Milaor and Gainza to form a new second legislative
district. The following table[3] illustrates the reapportionment made by Republic
Act No. 9716:

District Municipalities/Cities Population

Del Gallego
Ragay
1st District Lupi 176,383
Sipocot
Cabusao

Libmanan San Fernando

2nd District Minalabac Gainza 276,777
Pamplona Milaor
Pasacao

Naga Camaligan
Pili Magarao
3rd District Ocampo Bombon 439,043
(formerly Canaman Calabanga
2nd District)

Caramoan Sangay
Garchitorena San Jose
4th District Goa Tigaon 372,548
(formerly Lagonoy Tinamba
3rd District) Presentacion Siruma

Iriga Buhi
th
5 District Baao Bula
(formerly Balatan Nabua 429,070
4th District) Bato

Republic Act No. 9716 is a well-milled legislation. The factual recitals by

both parties of the origins of the bill that became the law show that, from the filing
of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in
favor and two (2) against, the process progressed step by step, marked by public
hearings on the sentiments and position of the local officials of Camarines Sur on
the creation of a new congressional district, as well as argumentation and debate
on the issue, now before us, concerning the stand of the oppositors of the bill that a
population of at least 250,000 is required by the Constitution for such new
district.[4]

Petitioner Aquino III was one of two senators who voted against the approval of
the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City,
which was a part of the former second district from which the municipalities of
Gainza and Milaor were taken for inclusion in the new second district. No other
local executive joined the two; neither did the representatives of the former third
and fourth districts of the province.

Petitioners contend that the reapportionment introduced by Republic Act No.

9716, runs afoul of the explicit constitutional standard that requires a minimum
population of two hundred fifty thousand (250,000) for the creation of a legislative
district.[5]The petitioners claim that the reconfiguration by Republic Act No. 9716
of the first and second districts of Camarines Sur is unconstitutional, because the
proposed first district will end up with a population of less than 250,000 or only
176,383.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the
cited 250,000 minimum population standard.[6] The provision reads:

Article VI

Section 5. (1) x x x x

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
 (4) x x x x (Emphasis supplied).

The petitioners posit that the 250,000 figure appearing in the above-cited provision
is the minimum population requirement for the creation of a legislative
district.[7] The petitioners theorize that, save in the case of a newly created
province, each legislative district created by Congress must be supported by a
minimum population of at least 250,000 in order to be valid.[8] Under this view,
existing legislative districts may be reapportioned and severed to form new
districts, provided each resulting district will represent a population of at least
250,000. On the other hand, if the reapportionment would result in the creation of
a legislative seat representing a populace of less than 250,000 inhabitants, the
reapportionment must be stricken down as invalid for non-compliance with the
minimum population requirement.

In support of their theory, the petitioners point to what they claim is the intent of
the framers of the 1987 Constitution to adopt a population minimum of 250,000 in
the creation of additional legislative seats.[9] The petitioners argue that when the
Constitutional Commission fixed the original number of district seats in the House
of Representatives to two hundred (200), they took into account the projected
national population of fifty five million (55,000,000) for the year
1986.[10] According to the petitioners, 55 million people represented by 200 district
representatives translates to roughly 250,000 people for every one (1)
representative.[11] Thus, the 250,000 population requirement found in Section 5(3),
Article VI of the 1987 Constitution is actually based on the population constant
used by the Constitutional Commission in distributing the initial 200 legislative
seats.
Thus did the petitioners claim that in reapportioning legislative districts
independently from the creation of a province, Congress is bound to observe a
250,000 population threshold, in the same manner that the Constitutional
Commission did in the original apportionment.

Verbatim, the submission is that:

1. Republic Act 9716 is unconstitutional because the newly apportioned

first district of Camarines Sur failed to meet the population
 requirement for the creation of the legislative district as explicitly
provided in Article VI, Section 5, Paragraphs (1) and (3) of the
Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional

representation as provided in Article VI, Section 5 paragraphs (1), (3)
and (4) of the Constitution.[12]

The provision subject of this case states:

Article VI
Section 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among
the provinces, cities and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional and
sectoral parties or organizations.

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at
least one representative.

(4) Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.

On the other hand, the respondents, through the Office of the Solicitor General,
seek the dismissal of the present petition based on procedural and substantive
grounds.

On procedural matters, the respondents argue that the petitioners are guilty of two
(2) fatal technical defects: first, petitioners committed an error in choosing to assail
the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and
Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have
no locus standi to question the constitutionality of Republic Act No. 9716.

On substantive matters, the respondents call attention to an apparent

distinction between cities and provinces drawn by Section 5(3), Article VI of the
1987 Constitution. The respondents concede the existence of a 250,000 population
condition, but argue that a plain and simple reading of the questioned provision
will show that the same has no application with respect to the creation of
legislative districts in provinces.[13] Rather, the 250,000 minimum population is
only a requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population
requirement for the reapportionment of districts in provinces. Therefore, Republic
Act No. 9716, which only creates an additional legislative district within the
province of Camarines Sur, should be sustained as a perfectly valid
reapportionment law.

We first pass upon the threshold issues.

The respondents assert that by choosing to avail themselves of the remedies

of Certiorari and Prohibition, the petitioners have committed a fatal procedural
lapse. The respondents cite the following reasons:

1. The instant petition is bereft of any allegation that the respondents had
acted without or in excess of jurisdiction, or with grave abuse of
discretion.

2. The remedy of Certiorari and Prohibition must be directed against a

tribunal, board, officer or person, whether exercising judicial, quasi-
judicial, or ministerial functions. Respondents maintain that in
implementing Republic Act No. 9716, they were not acting as a judicial
or quasi-judicial body, nor were they engaging in the performance of a
ministerial act.

3. The petitioners could have availed themselves of another plain, speedy

and adequate remedy in the ordinary course of law. Considering that
the main thrust of the instant petition is the declaration of
 unconstitutionality of Republic Act No. 9716, the same could have
been ventilated through a petition for declaratory relief, over which the
Supreme Court has only appellate, not original jurisdiction.

The respondents likewise allege that the petitioners had failed to show that
they had sustained, or is in danger of sustaining any substantial injury as a result of
the implementation of Republic Act No. 9716. The respondents, therefore,
conclude that the petitioners lack the required legal standing to question the
constitutionality of Republic Act No. 9716.

This Court has paved the way away from procedural debates when
confronted with issues that, by reason of constitutional importance, need a direct
focus of the arguments on their content and substance.

The Supreme Court has, on more than one occasion, tempered the
application of procedural rules,[14] as well as relaxed the requirement of locus
standi whenever confronted with an important issue of overreaching significance
to society.[15]

Hence, in Del Mar v. Philippine Amusement and Gaming Corporation

(PAGCOR)[16] and Jaworski v. PAGCOR,[17] this Court sanctioned momentary
deviation from the principle of the hierarchy of courts, and took original
cognizance of cases raising issues of paramount public importance. The Jaworski
case ratiocinates:
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance of
the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation,
specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
 Anent the locus standi requirement, this Court has already uniformly ruled
in Kilosbayan v. Guingona,[18] Tatad v. Executive Secretary,[19] Chavez v. Public
Estates Authority[20] and Bagong Alyansang Makabayan v. Zamora,[21] just to
name a few, that absence of direct injury on the part of the party seeking judicial
review may be excused when the latter is able to craft an issue of transcendental
importance. In Lim v. Executive Secretary,[22] this Court held that in cases of
transcendental importance, the cases must be settled promptly and definitely, and
so, the standing requirements may be relaxed. This liberal stance has been echoed
in the more recent decision on Chavez v. Gonzales.[23]

Given the weight of the issue raised in the instant petition, the foregoing
principles must apply. The beaten path must be taken. We go directly to the
determination of whether or not a population of 250,000 is an indispensable
constitutional requirement for the creation of a new legislative district in a
province.
We deny the petition.

We start with the basics. Any law duly enacted by Congress carries with it the
presumption of constitutionality.[24] Before a law may be declared unconstitutional
by this Court, there must be a clear showing that a specific provision of the
fundamental law has been violated or transgressed. When there is neither a
violation of a specific provision of the Constitution nor any proof showing that
there is such a violation, the presumption of constitutionality will prevail and the
law must be upheld. To doubt is to sustain.[25]

There is no specific provision in the Constitution that fixes a 250,000

minimum population that must compose a legislative district.

As already mentioned, the petitioners rely on the second sentence of Section 5(3),
Article VI of the 1987 Constitution, coupled with what they perceive to be the
intent of the framers of the Constitution to adopt a minimum population of 250,000
for each legislative district.
 The second sentence of Section 5(3), Article VI of the Constitution,
succinctly provides: Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative.

The provision draws a plain and clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a province to a district on the
other. For while a province is entitled to at least a representative, with nothing
mentioned about population, a city must first meet a population minimum of
250,000 in order to be similarly entitled.

The use by the subject provision of a comma to separate the phrase each city
with a population of at least two hundred fifty thousand from the phrase or each
province point to no other conclusion than that the 250,000 minimum population is
only required for a city, but not for a province. [26]

Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum

population only for a city to be entitled to a representative, but not so for a
province.

The 250,000 minimum population requirement for legislative districts in

cities was, in turn, the subject of interpretation by this Court in Mariano, Jr. v.
COMELEC.[27]

In Mariano, the issue presented was the constitutionality of Republic Act

No. 7854, which was the law that converted the Municipality of Makati into a
Highly Urbanized City. As it happened, Republic Act No. 7854 created an
additional legislative district for Makati, which at that time was a lone district. The
petitioners in that case argued that the creation of an additional district would
violate Section 5(3), Article VI of the Constitution, because the resulting districts
would be supported by a population of less than 250,000, considering that Makati
had a total population of only 450,000. The Supreme Court sustained the
constitutionality of the law and the validity of the newly created district,
explaining the operation of the Constitutional phrase each city with a population of
at least two hundred fifty thousand, to wit:
 Petitioners cannot insist that the addition of another legislative
district in Makati is not in accord with section 5(3), Article VI of the
Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said
section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one
representative. Even granting that the population of Makati as of the
1990 census stood at four hundred fifty thousand (450,000), its
legislative district may still be increased since it has met the
minimum population requirement of two hundred fifty thousand
(250,000). In fact, Section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to
more than two hundred fifty thousand (250,000) shall be entitled to at
least one congressional representative.[28] (Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population
requirement for cities only to its initial legislative district. In other words, while
Section 5(3), Article VI of the Constitution requires a city to have a minimum
population of 250,000 to be entitled to a representative, it does not have to increase
its population by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of
an additional district within a city, should not be applied to additional districts in
provinces. Indeed, if an additional legislative district created within a city is not
required to represent a population of at least 250,000 in order to be valid, neither
should such be needed for an additional district in a province, considering
moreover that a province is entitled to an initial seat by the mere fact of its creation
and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the
creation of a province which, by virtue of and upon creation, is entitled to at least a
legislative district. Thus, Section 461 of the Local Government Code states:

Requisites for Creation. (a) A province may be created if it has an

average annual income, as certified by the Department of Finance, of not
less than Twenty million pesos (P20,000,000.00) based on 1991 constant
prices and either of the following requisites:
 (i) a contiguous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office.

Notably, the requirement of population is not an indispensable requirement,

but is merely an alternative addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran
through the deliberations on the words and meaning of Section 5 of Article VI.
The whats, whys, and wherefores of the population requirement of at least two
hundred fifty thousand may be gleaned from the records of the Constitutional
Commission which, upon framing the provisions of Section 5 of Article VI,
proceeded to form an ordinance that would be appended to the final document. The
Ordinance is captioned APPORTIONING THE SEATS OF THE HOUSE OF
REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE
DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND
THE METROPOLITAN MANILA AREA. Such records would show that the
250,000 population benchmark was used for the 1986
nationwide apportionment of legislative districtsamong provinces, cities and
Metropolitan Manila. Simply put, the population figure was used to determine how
many districts a province, city, or Metropolitan Manila should have. Simply
discernible too is the fact that, for the purpose, population had to be the
determinant. Even then, the requirement of 250,000 inhabitants was not taken as
an absolute minimum for one legislative district. And, closer to the point herein at
issue, in the determination of the precise district within the province to which,
through the use of the population benchmark, so many districts have been
apportioned, population as a factor was not the sole, though it was among, several
determinants.

From its journal,[29] we can see that the Constitutional Commission originally
divided the entire country into two hundred (200) districts, which corresponded to
the original number of district representatives. The 200 seats were distributed by
the Constitutional Commission in this manner: first, one (1) seat each was given to
the seventy-three (73) provinces and the ten (10) cities with a population of at least
250,000;[30] second, the remaining seats were then redistributed among the
provinces, cities and the Metropolitan Area in accordance with the number of their
inhabitants on the basis of a uniform and progressive ratio. [31] Commissioner
Davide, who later became a Member and then Chief Justice of the Court,
explained this in his sponsorship remark[32] for the Ordinance to be appended to the
1987 Constitution:

Commissioner Davide: The ordinance fixes at 200 the number of

legislative seats which are, in turn, apportioned among provinces and
cities with a population of at least 250, 000 and the Metropolitan Area in
accordance with the number of their respective inhabitants on the basis
of a uniform and progressive ratio. The population is based on the 1986
projection, with the 1980 official enumeration as the point of
reckoning. This projection indicates that our population is more or less
56 million. Taking into account the mandate that each city with at
least 250, 000 inhabitants and each province shall have at least one
representative, we first allotted one seat for each of the 73 provinces,
and each one for all cities with a population of at least 250, 000,
which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu,
Iloilo, Bacolod, Cagayan de Oro, Davao and
Zamboanga. Thereafter, we then proceed[ed] to increase whenever
appropriate the number of seats for the provinces and cities in
accordance with the number of their inhabitants on the basis of a
uniform and progressive ratio. (Emphasis supplied).

Thus was the number of seats computed for each province and city. Differentiated
from this, the determination of the districts within the province had to consider all
protests and complaints formally received which, the records show, dealt with
determinants other than population as already mentioned.

Palawan is a case in point. Journal No. 107 of the Constitutional Commission

narrates:

INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the
northern towns when it was more affinity with the southern town of
Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He stated
that the First District has a greater area than the Second District.He then
queried whether population was the only factor considered by the
Committee in redistricting.

Replying thereto, Mr. Davide explained that the Committee took into
account the standards set in Section 5 of the Article on the Legislative
Department, namely: 1) the legislative seats should be apportioned
among the provinces and cities and the Metropolitan Manila area in
accordance with their inhabitants on the basis of a uniform and
progressive ratio; and 2) the legislative district must be compact,
adjacent and contiguous.

Mr. Nolledo pointed out that the last factor was not met when Puerto
Princesa was included with the northern towns. He then inquired what is
the distance between Puerto Princesa from San Vicente.
xxxx

Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of

75,480 and based on the apportionment, its inclusion with the northern
towns would result in a combined population of 265,000 as against only
186,000 for the south. He added that Cuyo and Coron are very important
towns in the northern part of Palawan and, in fact, Cuyo was the capital
of Palawan before its transfer to Puerto Princesa. He also pointed out
that there are more potential candidates in the north and therefore if
Puerto Princesa City and the towns of Cuyo and Coron are lumped
together, there would be less candidates in the south, most of whose
inhabitants are not interested in politics. He then suggested that Puerto
Princesa be included in the south or the Second District.

Mr. Davide stated that the proposal would be considered during

the period of amendments. He requested that the COMELEC staff study
said proposal.[33]

PROPOSED AMENDMENT OF MR. NOLLEDO

On the districting of Palawan, Mr. Nolledo pointed out that it was

explained in the interpellations that District I has a total population of
265,358 including the City of Puerto Princesa, while the Second District
has a total population of 186,733. He proposed, however, that Puerto
Princesa be included in the Second District in order to satisfy the
 contiguity requirement in the Constitution considering that said City is
nearer the southern towns comprising the Second District.
In reply to Mr. Monsods query, Mr. Nolledo explained that with the
proposed transfer of Puerto Princesa City to the Second District, the First
District would only have a total population of 190,000 while the Second
District would have 262,213, and there would be no substantial changes.

Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa

City before the Municipality of Aborlan.
There being no objection on the part of the Members the same was
approved by the Body.

APPROVAL OF THE APPORTIONMENT AND DISTRICTING

OF PALAWAN

There being no other amendment, on motion of Mr. Davide, there

being no objection, the apportionment and districting for the province
of Palawan was approved by the Body.[34]
The districting of Palawan disregarded the 250,000 population figure. It was
decided by the importance of the towns and the city that eventually composed the
districts.

Benguet and Baguio are another reference point. The Journal further
narrates:

At this juncture, Mr. Davide informed the Body that Mr. Regalado
made a reservation with the Committee for the possible reopening of the
approval of Region I with respect to Benguet and Baguio City.

REMARKS OF MR. REGALADO

Mr. Regalado stated that in the formulation of the Committee,

Baguio City and Tuba are placed in one district. He stated that he was
toying with the idea that, perhaps as a special consideration for Baguio
because it is the summer capital of the Philippines, Tuba could be
divorced from Baguio City so that it could, by itself, have its own
constituency and Tuba could be transferred to the Second District
together with Itogon. Mr. Davide, however, pointed out that the
population of Baguio City is only 141,149.
 Mr. Regalado admitted that the regular population of Baguio may
be lower during certain times of the year, but the transient population
would increase the population substantially and, therefore, for purposes
of business and professional transactions, it is beyond question that
population-wise, Baguio would more than qualify, not to speak of the
official business matters, transactions and offices that are also there.

Mr. Davide adverted to Director de Limas statement that unless

Tuba and Baguio City are united, Tuba will be isolated from the rest of
Benguet as the place can only be reached by passing through Baguio
City. He stated that the Committee would submit the matter to the Body.

Upon inquiry of the Chair whether he is insisting on his

amendment, Mr. Regalado stated that the Body should have a say on the
matter and that the considerations he had given are not on the
demographic aspects but on the fact that Baguio City is the summer
capital, the venue and situs of many government offices and functions.

On motion of Mr. Davide, there being no objection, the Body

approved the reconsideration of the earlier approval of the
apportionment and districting of Region I, particularly Benguet.

Thereafter, on motion of Mr. Davide, there being no objection, the

amendment of Mr. Regalado was put to a vote. With 14 Members voting
in favor and none against, the amendment was approved by the Body.

Mr. Davide informed that in view of the approval of the

amendment, Benguet with Baguio City will have two seats. The First
District shall comprise of the municipalities of Mankayan, Buguias,
Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La
Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise
of Baguio City alone.

There being no objection, the Body approved the apportionment

and districting of Region I.[35]

Quite emphatically, population was explicitly removed as a factor.

It may be additionally mentioned that the province of Cavite was divided

into districts based on the distribution of its three cities, with each district having a
city: one district supposed to be a fishing area; another a vegetable and fruit area;
and the third, a rice growing area, because such consideration fosters common
interests in line with the standard of compactness.[36] In the districting of
Maguindanao, among the matters discussed were political stability and common
interest among the people in the area and the possibility of chaos and disunity
considering the accepted regional, political, traditional and sectoral leaders.[37] For
Laguna, it was mentioned that municipalities in the highland should not be
grouped with the towns in the lowland.For Cebu, Commissioner Maambong
proposed that they should balance the area and population.[38]

Consistent with Mariano and with the framer deliberations on district

apportionment, we stated in Bagabuyo v. COMELEC[39] that:
x x x Undeniably, these figures show a disparity in the population sizes
of the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in gauging
equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is that
every legislative district should comprise, as far as practicable,
contiguous, compact and adjacent territory. (Emphasis supplied).

This 2008 pronouncement is fresh reasoning against the uncompromising stand of

petitioner that an additional provincial legislative district, which does not have at
least a 250,000 population is not allowed by the Constitution.

The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the Constitution
can, the petition find support. And the formulation of the Ordinance in the
implementation of the provision, nay, even the Ordinance itself, refutes the
contention that a population of 250,000 is a constitutional sine qua non for the
formation of an additional legislative district in a province, whose population
growth has increased beyond the 1986 numbers.

Translated in the terms of the present case:

 1. The Province of Camarines Sur, with an estimated population of
1,693,821 in 2007 is ─ based on the formula and constant number of
250,000 used by the Constitutional Commission in nationally apportioning
legislative districts among provinces and cities ─ entitled to two (2) districts
in addition to the four (4) that it was given in the 1986 apportionment.
Significantly, petitioner Aquino concedes this point.[40] In other words,
Section 5 of Article VI as clearly written allows and does not prohibit an
additional district for the Province of Camarines Sur, such as that provided
for in Republic Act No. 9786;

2. Based on the pith and pitch of the exchanges on the Ordinance on the
protests and complaints against strict conformity with the population
standard, and more importantly based on the final districting in the
Ordinance on considerationsother than population, the reapportionment or
the recomposition of the first and second legislative districts in the Province
of Camarines Sur that resulted in the creation of a new legislative district is
valid even if the population of the new district is 176,383 and not 250,000 as
insisted upon by the petitioners.

3. The factors mentioned during the deliberations on House Bill No.

4264, were:

(a) the dialects spoken in the grouped municipalities;

(b) the size of the original groupings compared to that of the
regrouped municipalities;
(c) the natural division separating the municipality subject of the
discussion from the reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the
redistricting of Districts One and Two.[41]
Each of such factors and in relation to the others considered together, with
the increased population of the erstwhile Districts One and Two, point to the utter
absence of abuse of discretion, much less grave abuse of discretion,[42] that would
warrant the invalidation of Republic Act No. 9716.

To be clear about our judgment, we do not say that in the reapportionment

of the first and second legislative districts of Camarines Sur, the number of
inhabitants in the resulting additional district should not be considered. Our ruling
is that population is not the only factor but is just one of several other factors in the
composition of the additional district. Such settlement is in accord with both the
text of the Constitution and the spirit of the letter, so very clearly given form in the
Constitutional debates on the exact issue presented by this petition.

WHEREFORE, the petition is hereby DISMISSED. Republic Act No.

9716 entitled An Act Reapportioning the Composition of the First (1 st) and Second
(2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating
a New Legislative District From Such Reapportionment is a VALID LAW.
SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

[G.R. No. 108251. January 31, 1996]

CEFERINO S. PAREDES, JR. and MANSUETO J.

HONRADA, petitioners, vs. THE HONORABLE
SANDIGANBAYAN, Second Division; HONORABLE ANIANO
DESIERTO, in his official capacity as Special Prosecutor;
HONORABLE CONRADO M. VASQUEZ, in his official capacity as
Ombudsman; and TEOFILO GELACIO, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;
MAY BE INITIATED AND CONCLUDED BY DIFFERENT INVESTIGATORS. -
Petitioners contend that the filing of charges against them was not recommended
by the prosecutor who conducted the preliminary investigation, but by another one
who, it is alleged, had no part at all in the investigation. There is no basis for
petitioners claim that the resolution was prepared by one who did not take any part
in the investigation. What happened here is similar to the trial of a case by one
judge who, without being able to finish the hearing, ceases from office for one
reason or another and by necessity the decision is rendered by another judge who
 has taken over the conduct of the case. Such an arrangement has never been
thought to raise any question of due process. For what is important is that the judge
who decides does so on the basis of the evidence in record. It does not matter that
he did not conduct the hearing of that case from the beginning.
2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE; VALUE NOT
DIMINISHED BY FAILURE TO ANTICIPATE THAT HIS CERTIFICATE WOULD
BE USED IN EVIDENCE. - That Violan gave credence to the Certification of Judge
Ario in concluding that no arraignment had been held in Criminal Case No. 1393 is
not proof that Violan was biased against petitioners. Although Judge Ario
subsequently gave an Affidavit, he never in that Affidavit repudiated what he had
earlier stated. Judge Ario never denied his earlier Certification that Criminal Case
No. 1393 never reached the arraignment stave, because having learned that
Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals
resolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal
later moved for the dismissal of the case. The fact that Judge Ario did not anticipate
that his certificate might be used in evidence, much less in the criminal cases now
pending in the Sandiganbayan, is not a reason to disregard it. The fact is that Judge
Ario did not retract his previous Certification that there was no arraignment held in
Criminal Case No. 1393. If that is the truth, then the fact that he now says he did not
anticipate that his certificate would be used in evidence in any case would not
diminish a whit the value of the certificate.
3. ID.; EVIDENCE; ADMISSIBILITY; RETRACTION OF AFFIDAVIT MADE IN
VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, INADMISSIBLE. - There is
nothing in the resolution of Violan which shows that she based her conclusion (that
petitioners were probably guilty of falsification of public documents) on Atty.
Sansaets retraction. In her resolution, all that she stated is that the confession of
Atty. Sansaet has important bearing in this case. Otherwise she did not cite the
confession as proof of the falsification of public documents. To the contrary, Violan
thought that the retraction was made in violation of attorney-client privilege and
therefore, would be inadmissible in evidence. Violan could not, therefore, have
relied on the affidavit of retraction.
4. ID.; DISQUALIFICATION OF JUDGES; DIVERGENCE OF OPINIONS BETWEEN A
JUDGE AND A PARTYS COUNSEL, NOT A GROUND. - Mere divergence of
opinions between a judge and a partys counsel as to applicable laws and
jurisprudence is not sufficient ground for disqualifying the judge from hearing the
case on the ground of bias and partiality.
5. ID.; ACTIONS; MERE FILING OF SEVERAL CASES BASED ON THE SAME
INCIDENT, NOT FORUM-SHOPPING; TEST. - The mere filing of several cases
based on the same incident does not necessarily constitute forum-shopping. The
test is whether the several actions filed involve the same transactions, essential
facts, and circumstances.
6. ID.; ID.; ID.; CASES INVOLVING SUBSTANTIALLY DIFFERENT
TRANSACTIONS, FACTS AND CIRCUMSTANCES, NOT FORUM SHOPPING;
CASE AT BAR. - Here, although several cases were filed by the same complainant
 against the same defendant and the subject matter of the actions of two of the
cases was the same incident (i.e., the application for free patent of petitioner
Ceferino Paredes, Jr.), the fact is that the several cases involve essentially different
facts, circumstances and causes of action. Thus, Criminal Case No. 1393, which
was filed in the MCTC of San Francisco,. Agusan del Sur, was for perjury, based on
false statements allegedly made in 1975 by petitioner Paredes, Jr. in connection
with his free patent application. Criminal Case No. 13800, which was filed in the
Sandiganbayan, although based on the filing of the same application for free patent,
was for violation of the Anti-graft and Corrupt Practices Act, on the allegation that
petitioner, as Provincial Attorney, had unduly influenced the Public Land Inspector
to secure the approval of his free patent application. On the other hand, as already
stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are for
falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P-
90-396 is an administrative case against petitioner Honrada based on the same
incident and facts that are subject of the preceding criminal cases. The rest are
incidents of these cases, being the petition for review and motions for
reconsideration ifl Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus the
present cases involve substantially different transactions, facts and circumstances
from those involved in the other, though related, cases. Although they arose from
the same incident, i.e., petitioners public land application, they involve different
issues. It is well settled that a single act may offend against two or more distinct and
related provisions of law or that the same act may give rise to criminal as well as
administrative liability. As such, they may be prosecuted simultaneously or one after
another, so long as they do not place the accused in double jeopardy of being
punished for the same offense.
7. ID.; CRIMINAL PROCEDURE; DISMISSAL OF ADMINISTRATIVE COMPLAINT
DOES NOT NECESSARILY BAR FILING OF CRIMINAL PROSECUTION. -
Petitioners call attention to the fact that the administrative complaint against
petitioner Honrada was dismissed. They invoke our ruling in Maceda v.
Vasquez that only this Court has the power to oversee court personnels compliance
with laws and take the appropriate administrative action against them for their
failure to do so and that no other branch of the government may exercise this power
without running afoul of the principle of separation of powers. But one thing is
administrative liability. Quite another thing is the criminal liability for the same act.
Our determination of the administrative liability for falsification of public documents
is in no way conclusive of his lack of criminal liability. As we have held in Tan v.
Comelec, the dismissal of an administrative case does not necessarily bar the filing
of a criminal prosecution for the same or similar acts which were the subject of the
administrative complaint.
8. ID.; ID.; POLITICALLY MOTIVATED FILING OF CRIMINAL CHARGE CANNOT
JUSTIFY PROHIBITION OF CRIMINAL PROSECUTION IF THERE IS EVIDENCE
TO SUPPORT IT. - That the filing of the charges is politically motivated cannot
justify the prohibition of a criminal prosecution if there is otherwise evidence to
support them. Here a preliminary investigation of the complaint against petitioners
was held during which petitioners were heard. Their evidence, as well as that of
 private respondent Gelacio, was considered in great detail in the resolution of GIO II
Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubin
who made his own detailed resolution concurring in the finding of Violan. We cannot
say that, in approving the resolutions of two investigators, the respondent
Ombudsman and Special Prosecutor committed an abuse of their discretion.
9. ID.; ID.; PRELIMINARY INVESTIGATION; PURPOSE. - A preliminary investigation
is not a trial. The function of the government prosecutor during the preliminary
investigation is merely to determine the existence of probable cause.
10. ID.; ID.; POLITICAL HARASSMENT; REQUISITES; CASE AT BAR. - To warrant a
finding of political harassment so as to justify the grant of the extraordinary writs of
certiorari and prohibition, it must be shown that the complainant possesses the
power and the influence to control the prosecution of cases. Here, the prosecution
is handled by the Office of the Ombudsman. Although it is intimated that petitioner
Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies in
Agusan del Sur, it has not been alleged, much less shown, that his enemies have
influence and power over the national prosecution service. To show political
harassment petitioners must prove that public prosecutor, and not just the private
complainant, is acting in bad faith in prosecuting the case or has lent himself to a
scheme that could have no other purpose than to place the accused in contempt
and disrepute. For it is only if he does so may the prosecutor, in conducting the
preliminary investigation, be said to have deserted the performance of his office to
determine objectively and impartially the existence of probable cause and thus
justify judicial intervention in what is essentially his province.
APPEARANCES OF COUNSEL
Rolando A. Suarez & Associates for petitioners.
Esmeraldo I. Guloy for private respondent.

DECISION
MENDOZA, J.:

This is a petition for certiorari, prohibition and injunction, seeking to set aside the
resolution dated December 9, 1992 of the Office of the Ombudsman, denying
petitioners motion for the reinvestigation of three cases of falsification of public
documents which had been filed against petitioners and to restrain the Second Division
of the Sandiganbayan from hearing the cases.
The cases originated in a complaint filed on January 23, 1990 by Teofilo Gelacio,
then vice mayor of San Francisco, Agusan del Sur. Charged with petitioner Paredes,
Jr., who was then the provincial governor, were petitioner Mansueto J. Honrada, clerk of
court of the Municipal Circuit Trial Court of San Francisco, Agusan del Sur, and Atty.
Generoso Sansaet, counsel of petitioner Paredes, Jr. in Criminal Case No. 1393 of the
MCTC.
In his complaint Gelacio alleged that MCTC clerk of court Honrada, in conspiracy
with petitioner Paredes, Jr. and the latters counsel Atty. Sansaet, certified as true a
copy of a Notice of Arraignment dated July 1, 1985 and of the Transcript of
Stenographic Notes on July 9, 1985, showing that an arraignment had been held in
Criminal Case No. 1393 and issued a certification dated March 24, 1986 to that effect
when in truth no arraignment had been held in that case. In support of his allegation,
Gelacio submitted a Certification issued by Judge Ciriaco C. Ario of the MCTC to the
effect that Criminal Case No. 1393 had never reached the arraignment stage before it
was dismissed on motion of the prosecution.1
A preliminary investigation of the complaint was conducted by Public Prosecutor
Albert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao.
Petitioners and Atty. Sansaet, as respondents in the case, filed their respective counter-
affidavits. Paredes, Jr. denied the charges. He alleged that their filing was politically
motivated and that the complainant, Teofilo Gelacio, was being used by his political
enemies to harass him. For his part, Honrada maintained that an arraignment had
indeed been held in Criminal Case No. 1393 as certified by him. His claim was
corroborated by Atty. Generoso Sansaet, who stated in an affidavit that he was present
during the arraignment, being the counsel of Paredes, Jr. Sansaet called Judge Arios
Certification, denying that there was an arraignment, the product of a faltering mind.2
Prosecutor Axalan submitted his resolution to the Deputy Ombudsman
for Mindanao, but before it could be acted upon, Atty. Sansaet, one of the respondents,
retracted his earlier statement to the effect that Paredes, Jr. had been arraigned before
the case against him was dismissed. In an Affidavit of Explanations and Rectifications
dated July 29, 1991, Sansaet claimed that there was really no arraignment held in
Criminal Case No. 1393 and that Honrada made false certifications which were used to
support the dismissal (on the ground of double jeopardy) of Criminal Case No. 13800
which was then pending against Paredes, Jr. in the Sandiganbayan.3
As a result of this development, Paredes, Jr. and Honrada, were required to
comment. Paredes, Jr. claimed that the Sansaets aboutface was the result of their
political estrangement.4 For his part Honrada insisted that an arraignment in Criminal
Case No. 1393 had indeed been held and that in making the certifications in question
he stated the truth.
On the basis of the evidence of the parties, Gay Maggie Balajadia-Violan, Graft
Investigation Officer of the Office of the Deputy Ombudsman, recommended
on February 24, 1992 that petitioners and Atty. Sansaet be charged with Falsification of
Public Documents. Her recommendation was indorsed by Deputy Ombudsman Cesar
Nitorreda to Ombudsman Conrado Vasquez, Who, upon the recommendation of Erdulfo
Querubin of the Office of the Special Prosecutor, approved the filing of three
informations for falsification of public documents against Paredes, Jr., Honrada and
Sansaet with the Sandiganbayan.5 The cases were docketed as Criminal Case Nos.
17791, 17792 and 17793.
On July 9, 1992, petitioners moved to quash the informations. Their motion was
denied by the Sandiganbayan in its resolution of August 25, 1992, as was the motion for
reconsideration they subsequently filed.
 Petitioners next moved for a reinvestigation of the cases. They complained (1) that
the resolution, recommending the filing of the cases, was not prepared by Public
Prosecutor Axalan, who had conducted the preliminary investigation, but by GIO II Gay
Maggie Balajadia-Violan, who allegedly had no hand in the investigation; (2) that Violan
relied solely on the retraction of Atty. Generoso Sansaet and the Certification of Judge
Ciriaco C. Ario and disregarded evidence in favor of petitioners; and (3) that Prosecutor
Erdulfo Q. Querubin, who reviewed Violans recommendation, could not be expected to
act fairly because he was the prosecutor in Criminal Case No. 13800 in connection with
which the allegedly falsified records were used and in fact appealed the dismissal of the
case to this Court.6
Although these grounds were the same ones invoked by petitioners in their motion
to quash, which the Sandiganbayan had denied, the Sandiganbayan nonetheless
directed the prosecution to conduct a reinvestigation of the cases. Accordingly, the
Office of the Ombudsman required complainant, the herein respondent Teofilo Gelacio,
to comment on petitioners Motion for Reinvestigation.
In a resolution dated December 9, 1992, Special Prosecution Officer Carlos D.
Montemayor recommended denial of petitioners motion. He noted that the matters
raised in the motion were the same ones contained in petitioners motion to quash which
had already been denied and that in fact a cursory examination of the resolution of GIO
II Gay Maggie Balajadia-Violan shows that the existence of a prima facie case has been
duly established and the same was reviewed by SPO III Erdulfo Querubin and also the
approval of Honorable Conrado M. Vasquez. He held that as no newly-discovered
evidence or denial of due process had been shown, there was no basis for petitioners
request for a reinvestigation.
Montemayors recommendation was approved by Special Prosecutor Aniano
Desierto and Ombudsman Conrado Vasquez. Accordingly the Sandiganbayan set the
cases for trial.
The present petition for certiorari, prohibition and injunction was then filed to enjoin
the trial of the criminal cases. Petitioners pray that:

(1) Upon the filing of this petition and before its final resolution, to issue a temporary
restraining order immediately ordering the Sandiganbayan, Second Division, to cease
and desist from proceeding with the scheduled hearing of this case;

(2) After due hearing, to adjudge that respondents Honorable Special Prosecutor
Aniano A. Desierto and Honorable Ombudsman Conrado M. Vasquez have
committed grave abuse of discretion, amounting to lack of jurisdiction, in issuing and
approving the questioned resolution dated December 9, 1992 and ordering said
resolution denying petitioners motion for reinvestigation be annulled and set aside;

(3) To adjudge that the Sandiganbayan, Second Division, is without jurisdiction to try
Criminal Case Nos. 17791, 17792, and 17793 all of which are apparently intended as
political harassments against the herein petitioners, particularly as against Ceferino S.
Paredes, Jr., and prohibiting the said court from proceeding (with) the hearing of the
said cases on January 15, 1993, and likewise ordering the said court to dismiss the
said cases, with costs against respondents and Teofilo Gelacio; and

(4) To issue a writ of injunction, thereby making the restraining order permanent, and
prohibiting the respondents and complainant Teofilo Gelacio from committing any act
or acts tending to harass and to inflict further damage and injury to petitioners, such as
but not limited to the continuation and further prosecution of said Criminal Cases Nos.
17791, 17792, and 17793.

Petitioners contend (1) that their constitutional right to due process was violated at
various stages of the preliminary investigation; (2) that the prosecutors closed their eyes
to the fact that in filing the cases private respondent Teofilo Gelacio engaged in forum-
shopping; and (3) that the cases were filed for political harassment and there is in fact
no prima facie evidence to hold them answerable for falsification of public documents. 7

I.

Anent the first ground, petitioners contend that the filing of charges against them
was not recommended by the prosecutor who conducted the preliminary investigation,
but by another one who, it is alleged, had no part at all in the investigation.
Petitioners contention has no basis in fact. It appears that the preliminary
investigation of the complaint filed by Teofilo Gelacio was initially conducted by Public
Prosecutor Albert Axalan who had been deputized to assist the Deputy Ombudsman
for Mindanao in the investigation of graft cases. Axalan prepared a resolution. The
records do not show what his recommendation was. What is clear, however, is that no
action had been taken on his recommendation in view of the fact that Atty. Generoso
Sansaet, one of the respondents in the cases, retracted an earlier statement he had
given to the effect that petitioner Ceferino S. Paredes, Jr. had been arraigned in
Criminal Case No. 1393 before the case was dismissed. Atty. Sansaet now claimed that
no arraignment had been held after all. This new development required the reopening of
the investigation (in fact Paredes, Jr. and Honrada were required to comment on the
retraction), the reevaluation of the evidence, and the preparation of a new resolution.
Gay Maggie Balajadia-Violan, Graft Investigation Officer II of the Office of the Deputy
Ombudsman for Mindanao, was designated to conduct the investigation and prepare a
report, which she did.
Violans recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to
Ombudsman Conrado Vasquez, who then referred the matter to Special Prosecution
Officer Ill Erdulfo Querubin for review. Querubin concurred in the recommendation of
Violan but suggested that, instead of one, three separate informations for falsification of
public documents be filed against respondents (Paredes, Jr., Honrada and Sansaet),
considering that three documents were involved.
 On June 26, 1992, Ombudsman Conrado Vasquez approved the recommendations
of Violan and Querubin. Accordingly three cases were filed against petitioners with the
Sandiganbayan, where they were docketed as Criminal Case Nos. 17791, 17792 and
17793.
There is thus no basis for petitioners claim that the resolution was prepared by one
who did not take any part in the investigation. What happened here is similar to the trial
of a case by one judge who, without being able to finish the hearing, ceases from office
for one reason or another and by necessity the decision is rendered by another judge
who has taken over the conduct of the case. Such an arrangement has never been
thought to raise any question of due process. For what is important is that the judge
who decides does so on the basis of the evidence in record. It does not matter that he
did not conduct the hearing of that case from the beginning.
Petitioners nonetheless charge that GIO II Violan and Prosecutor Querubin did not
have such cold neutrality of an impartial judge to be trusted to conduct a fair
investigation. According to petitioners, Violan gave credence to the Certification issued
by Judge Ciriaco C. Ario when the fact is that Judge Ario subsequently executed an
affidavit, dated November 5, 1990, in which he explained that he issued the said
certificate without expectation that the same would be used as evidence in any case
and that the use of said certificate . . . is against [his] conscience. Worse, it is
contended, Violan considered the Affidavit of Explanations and Rectifications executed
by Atty. Sansaet, which she should have disregarded because it was made in violation
of the confidentiality of attorney-client communication under Rule 130, 24 (b) of the
Rules of Court. As for Prosecutor Querubin, they claim that he is the same prosecutor
who had handled the prosecution of Criminal Case No. 13800 against petitioner
Paredes, Jr. in the Sandiganbayan and after its dismissal, sought review in this Court
and, therefore, he was biased against petitioners.
That Violan gave credence to the Certification of Judge Ario in concluding that no
arraignment had been held in Criminal Case No. 1393 is not proof that Violan was
biased against petitioners. Although Judge Ario subsequently gave an Affidavit, he
never in that Affidavit repudiated what he had earlier stated. In his Affidavit he merely
stated:
1. That I am the incumbent Municipal Circuit Trial Court Judge in the First Municipal
Circuit Trial Court of San Francisco-Rosario-Bunawan, Agusan del Sur;
2. That I am the same Ciriaco C. Ario who issued a certificate in Criminal Case No.
1393 entitled Pp. vs. Ceferino S. Paredes, Jr. which certificate was used as
evidence in administrative complaint against Mansueto J. Honrada, in the
Administrative Complaint No. A.M. P-90-396 and Criminal Complaint against
Mansueto J. Honrada, incumbent Governor Ceferino S. Paredes, Jr. and Atty.
Generoso S. Sansaet before the Ombudsman under Criminal Case No. OBM-MIN-
90-0053 (sic) entitled Teofilo Gelacio vs. Mansueto J. Honrada, et. al.;
3. That honestly, the said certificate was issued without my expectation that the same
be used as evidence in any case and I be a witness;
4. That the use of said certificate as evidence in the above-mentioned cases is against
my conscience, more so upon discovery that the cases aforesaid are known to me
 to be politically motivated and involves [sic] big time politicians in Agusan del Sur
about whom I am not at liberty to name names for security reason;
5. That in view of all the foregoing, I am not interested to testify in any investigation to
be conducted in connection thereof, either in the administrative or criminal
proceedings.
Thus, Judge Ario never denied his earlier Certification that Criminal Case No. 1393
never reached the arraignment stage, because having learned that Paredes, Jr. had
petitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ario
suspended action until March 17, 1986 and in fact the fiscal later moved for the
dismissal of the case.
The fact that Judge Ario did not anticipate that his certificate might be used in
evidence, much less in the criminal cases now pending in the Sandiganbayan, is not a
reason to disregard it. The fact is that Judge Ario did not retract his previous
Certification that there was no arraignment held in Criminal Case No. 1393. If that is the
truth, then the fact that he now says he did not anticipate that his certificate would be
used in evidence in any case would not diminish a whit the value of the certificate.
Nor was consideration of the retraction of Atty. Sansaet proof that GIO II Violan was
biased against petitioners. Petitioners contend that Sansaets confession was privileged
and that Violan herself acknowledged that the affidavit of retraction might be
inadmissible in court.
In the first place, there is nothing in the resolution of Violan which shows that she
based her conclusion (that petitioners were probably guilty of falsification of public
documents) on Atty. Sansaets retraction. In her resolution, all that she stated is that the
confession of Atty. Sansaet has important bearing in this case. Otherwise she did not
cite the confession as proof of the falsification of public documents. To the contrary,
Violan thought that the retraction was made in violation of attorney-client privilege and
therefore, would be inadmissible in evidence. Violan could not, therefore, have relied on
the affidavit of retraction.
Moreover, the admissibility of this piece of evidence is a question for the
Sandiganbayan to determine in the event it is used by the prosecution. It is untenable to
ascribe bias and partiality to the investigator because she considered this retraction in
her resolution of the case. Even if she relied on it mere divergence of opinions between
a judge and a partys counsel as to applicable laws and jurisprudence is not sufficient
ground for disqualifying the judge from hearing the case on the ground of bias and
partiality.8
As for Prosecutor Querubin, simply because he was the one who handled the
prosecution of Criminal Case No. 13800, in connection with which the documents
allegedly falsified were used by petitioners, is not a reason for supposing he could not
act fairly. As any other counsel in a case, it was his duty to act with full devotion to [his
clients] genuine interests, warm zeal in the maintenance and defense of his rights, and
the exertion of his utmost learning and ability.9 It cannot be casually assumed that
because of his engagement in that case he had lost his objectivity to such an extent that
he forsook his duty to see to it that justice was done and not to act out of vindictiveness.
 Indeed, Querubin is a public prosecutor, not a private attorney. In the familiar
terminology, he is the representative not of an ordinary party to a controversy but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all and whose interest, therefore, in a criminal prosecution is not that it shall
win a case but that justice shall be done.10 It may therefore be assumed that he was
merely performing an official duty and that nothing personal was involved in his
recommendation to prosecute the cases.
Above all, it should be stressed that the decision to charge petitioners in the
Sandiganbayan was the decision not only of one person but of all those who in one way
or another were called upon to act in the cases, namely: Graft Investigation Officer Gay
Maggie Balajadia-Violan, Deputy Ombudsman Cesar Nitorreda, Ombudsman Conrado
Vasquez, and Special Prosecutor Aniano Desierto. Indeed, Querubins only contribution
to the process was to suggest the filing of three separate informations of falsification of
public documents against petitioners.

II.

The second ground for the petition is that the Office of the Ombudsman closed its
eyes to the fact that in filing these cases, complainant Teofilo Gelacio is guilty of forum-
shopping and that his purpose for the filing of the cases is simply political harassment.
To buttress their contention, petitioners call attention to the factual background of the
cases.11
According to petitioners, way back in 1984 private respondent Teofilo Gelacio
charged petitioner Paredes, Jr. with perjury on the ground that in 1975 Paredes, Jr.
made false statements in an affidavit which he used in support of his application for a
free patent. As already noted, the case which was filed with the Municipal Trial Court of
San Francisco, Agusan del Sur, and docketed there as Criminal Case No. 1393, was
dismissed on March 24, 1986 upon motion of the prosecution.
On October 28, 1986, Teofilo Gelacio filed another complaint against petitioner
Paredes, Jr., then the acting governor of the province. The complaint was for violation of
3 (a) of Republic Act 3019, otherwise known as Anti-Graft and Corrupt Practices Act.
Allegedly, in 1976 petitioner Paredes, Jr., then the Provincial Attorney of Agusan del
Sur, unduly persuaded, induced and influenced the Public Land Inspector to approve
his (Paredes, Jrs) application for a free patent. According to petitioners, this case
involved the same application for a free patent of petitioner Paredes, Jr., which was the
subject of Criminal Case No. 1393.
The information was filed by Special Prosecutor Erdulfo Querubin in the
Sandiganbayan where it was docketed as Criminal Case No. 13800. Petitioner Paredes,
Jr. moved to quash the information, but the court denied his motion. He then filed a
motion for reconsideration. It was in connection with this motion that the procurement of
allegedly falsified documents, now the subject of prosecution, was made by petitioner
Paredes, Jr. The documents were used to support his motion for reconsideration.
 On August 1, 1991, the Sandiganbayan reconsidered its previous resolution and
dismissed Criminal Case No. 13800, although on the ground of prescription. The Office
of the Ombudsman sought a review of the action of the Sandiganbayan, but its petition
was dismissed by this Court on July 3, 1992 in G.R. No. 101724. The motion for
reconsideration filed by the prosecution was likewise denied.
As an offshoot of the execution of these documents, two cases were filed by Teofilo
Gelacio: (1) an administrative complaint (A.P. Case No. P-90-3 96) for falsification of
public documents which was filed with this Court against Mansueto Honrada, the clerk
of the MCTC who made certifications and (2) a complaint for falsification of public
documents, initially filed as OMB-MIN-90-0053 with the Office of the Ombudsman and
eventually as Criminal Case Nos. 17791, 17792, and 17793 in the Sandiganbayan,
against the petitioners and Atty. Generoso Sansaet.
The first case was dismissed for insufficiency of the evidence. But with respect to
the second complaint, Graft Investigation Officer Violan found probable cause to
proceed against petitioners and against Atty. Sansaet and so recommended the filing of
a case against them. Her recommendation was approved by the Ombudsman on June
26, 1992, although upon the recommendation of Special Prosecutor Querubin three
separate informations were filed with the Sandiganbayan. Earlier on July 29, 1991, Atty.
Sansaet, one of the respondents, executed an Affidavit of Explanations and
Rectifications in which he stated that, contrary to his previous affidavit, there was no
arraignment held in Criminal Case No. 1393.
A. Petitioners contend that these cases should be dismissed, being merely the
latest in a series of cases which arose out of the same alleged incident - i.e. that of
allegedly having induced the land inspector to approve his (Paredes, Jr.s) land
application,12 for having been filed in violation of the rules on forum-shopping.
Petitioners cite the following statement in Crisostomo v. Securities and Exchange
Commission:13

There is forum-shopping whenever as a result of an adverse opinion in one forum, a

party seeks a favorable opinion (other than by appeal or certiorari) in another. The
principle applies not only with respect to suits filed in the courts while an
administrative proceeding is pending as in this case, in order to defeat administrative
processes and in anticipation of an unfavorable administrative ruling and a favorable
court ruling. . . A violation of this rule shall constitute contempt of court and shall be a
cause for summary dismissal of both petitions, without prejudice to the taking of
appropriate action against the counsel or the party concerned.

The mere filing of several cases based on the same incident does not necessarily
constitute forum-shopping. The test is whether the several actions filed involve the
same transactions, essential facts, and circumstances.14 Here, although several cases
were filed by the same complainant against the same defendant and the subject matter
of the actions of two of the cases was the same incident (i.e., the application for free
patent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involve
essentially different facts, circumstances and causes of action.
 Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco,
Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 by
petitioner Paredes, Jr. in connection with his free patent application. Criminal Case No.
13800, which was filed in the Sandiganbayan, although based on the filing of the same
application for free patent, was for violation of the Anti-graft and Corrupt Practices Act,
on the allegation that petitioner, as Provincial Attorney, had unduly influenced the Public
Land Inspector to secure the approval of his free patent application. On the other hand,
as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are
for falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P-
90-396 is an administrative case against petitioner Honrada based on the same incident
and facts that are subject of the preceding criminal cases. The rest are incidents of
these cases, being the petition for review and motions for reconsideration in Criminal
Case No. 13800 and A.P. Case No. P-90-396.
Thus the present cases involve substantially different transactions, facts and
circumstances from those involved in the other, though related, cases. Although they
arose from the same incident, i.e., petitioners public land application, they involve
different issues. It is well settled that a single act may offend against two or more
distinct and related provisions of law15 or that the same act may give rise to criminal as
well as administrative liability.16 As such, they may be prosecuted simultaneously or one
after another, so long as they do not place the accused in double jeopardy of being
punished for the same offense.
Petitioners call attention to the fact that the administrative complaint against
petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez17 that
only this Court has the power to oversee court personnels compliance with laws and
take the appropriate administrative action against them for their failure to do so and that
no other branch of the government may exercise this power without running afoul of the
principle of separation of powers.
But one thing is administrative liability. Quite another thing is the criminal liability for
the same act. Our determination of the administrative liability for falsification of public
documents is in no way conclusive of his lack of criminal liability. As we have held
in Tan v. Comelec,18 the dismissal of an administrative case does not necessarily bar
the filing of a criminal prosecution for the same or similar acts which were the subject of
the administrative complaint.
Petitioners assertion that private respondent Alterado has resorted to forum-
shopping is unacceptable. The investigation then being conducted by the Ombudsman
on the criminal case for falsification and violation of the Anti-Graft and Corrupt Practices
Act, on the one hand, and the inquiry into the administrative charges by the COMELEC,
on the other hand, are entirely independent proceedings. Neither would the results in
one conclude the other. Thus an absolution from a criminal charge is not a bar to an
administrative prosecution (Office of the Court administrator v. Enriquez, 218 SCRA 1)
or vice versa.19
B. As final argument, petitioners allege that the complaint in Criminal Case Nos.
17791, 17792 and 17793 was filed by political enemies of petitioner Paredes, Jr. merely
to harass him and that there is in fact no probable cause to support the prosecution of
these cases. Petitioners cite the following which allegedly indicate that the charges
below have merely been trumped up:
(1) The affidavit of Agusan del Sur District Citizens Attorney Lou Nueva, stating that
then Congressman Democrito O. Plaza instructed Atty. Leonardo Cadiz to secure a
certification from Judge Ciriaco C. Ario that no arraignment had been held in Criminal
Case No. 1393, threatening that if the judge refused to give the certification, he
(Congressman Plaza) would do everything against
Judge Ciriaco C. Ario, including reviving certain cases against Judge Ario; 20 and (2)
The affidavit, dated November 5, 1990, of Judge Ario in which he stated that he did not
expect that the certificate which he had previously issued would be used in evidence
and that the use of the certificate in the cases below was against his conscience,
because the cases were politically motivated and he was not going to testify in any
investigation concerning such certificate.21 At the same time petitioners seek to minimize
the retraction of Atty. Sansaet by ascribing political motivation for its execution.
Petitioner Ceferino Paredes, Jr. claims that Sansaets obsession has been to win in an
election and that his loss to petitioner Paredes, Jr. in the May 11, 1992 congressional
elections was Sansaets sixth defeat. As for private respondent Teofilo Gelacio,
petitioners say he is a political leader of Democrito Plaza. They claim that in 1991 Atty.
Sansaet changed political affiliation and allied himself with Democrito Plaza and Teofilo
Gelacio.
Petitioners argue that the certifications made by the clerk of court with respect to an
arraignment allegedly held on July 9, 1985 in Criminal Case No. 1393 is conclusive and
cannot be altered by Atty. Sansaets claim to the contrary. They cite what is now Rule
132, 23 of the Revised Rules on Evidence, which provides that public instruments are
evidence, even against a third person, of the fact which gave rise to their execution and
of the date of the latter.
We find the foregoing averments to be unpersuasive. First of all, that the filing of the
charges is politically motivated cannot justify the prohibition of a criminal prosecution if
there is otherwise evidence to support them. Here a preliminary investigation of the
complaint against petitioners was held during which petitioners were heard. Their
evidence, as well as that of private respondent Gelacio, was considered in great detail
in the resolution of GIO II Violan. Violans resolution was reviewed by Special Prosecutor
Erdulfo Querubin who made his own detailed resolution concurring in the finding of
Violn. We cannot say that, in approving the resolutions of two investigators, the
respondent Ombudsman and Special Prosecutor committed an abuse of their
discretion.
Indeed, this Court is loath to interfere with the discretion of the Ombudsman unless
such discretion is clearly shown to have been abused. As explained in Young v. Office
of the Ombudsman:22

The rule is based not only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as
well. Otherwise, the functions of the courts will be grievously hampered by
innumerable petitions assailing the dismissal of investigatory proceedings conducted
by the Office of the Ombudsman with regard to complaints filed before it, in much the
same way that the courts would be extremely swamped if they could be compelled to
review the exercise of discretion on the part of the fiscals or prosecuting attorneys
each time they decide to file an information in court or dismiss a complaint by a
private complainant.

There are instances, constituting exceptions to the general rule, when this Court will
intervene in the prosecution of cases. Some of these instances were enumerated
in Brocka v. Enrile,23 as follows:
a. Where injunction is justified by the necessity to afford protection to the constitutional
rights of the accused; (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19
SCRA 95)
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions; (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al. L-38383, May 27 1981, 104 SCRA 607)
c. When there is a prejudicial question which is sub judice;. (De Leon vs. Mabanag, 70
Phil. 202)
d. When the acts of the officer are without or in excess of authority; (Planas vs. Gil, 67
Phil 62)
e. Where the prosecution is under an invalid law, ordinance or regulation; (Young vs.
Rafferty, 33 Phil 556; Yu Co Eng vs. Trinidad, 47 Phil. 385, 389)
f. When double jeopardy is clearly apparent; (Sangalang vs. People and Avendia, 109
Phil. 1140)
g. Where the court has no jurisdiction over the offense; (Lopez vs. City Judge, L-
25795, October 29, 1966, 18 SCRA 616).
h. Where it is a case of persecution rather than prosecution; (Rustia vs. Ocampo, CA-
G.R. No. 4760, March 25, 1960)
i. Where the charges are manifestly false and motivated by the lust for vengeance;
(Recto vs. Castelo, 18 L.J. (1953), cited in Ranoa vs. Alvendia, CA G.R. No. 30720-
R, October 8, 1962; cf Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577).
j. When there is clearly no prima facie case against the accused and motion to quash
on that ground has been denied; (Salonga vs. Pano, et al., L-59524, February 18,
1985, 134 SCRA 438); and
k. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners. (Rodriguez vs. Castelo, L-6374, August 1,
1953) (cited in Regalado, REMEDIAL LAW COMPENDIUM, p. 188 1988 Ed).
But none of these instances is present here.
What petitioners raise are questions which go to the weight to be given to the
affidavits by Atty. Nueva and Judge Ario. These are matters for the trial courts
appreciation. A preliminary investigation is not a trial. The function of the government
prosecutor during the preliminary investigation is merely to determine the existence of
probable cause.24 As we explained in Pilapil vs. Sandiganbayan,25 this function involves
only the following:

Probable cause is a reasonable ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. (Words and Phrases, Probable Cause v. 34, p. 12) The
term does not mean actual and positive cause nor does it import absolute certainty. It
is merely based on opinion and reasonable belief. Thus a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge.

Secondly, to warrant a finding of political harassment so as to justify the grant of the

extraordinary writs of certiorari and prohibition, it must be shown that the complainant
possesses the power and the influence to control the prosecution of cases. Here, the
prosecution is handled by the Office of the Ombudsman. Although it is intimated that
Petitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemies
in Agusan del Sur, it has not been alleged, much less shown, that his enemies have
influence and power over the national prosecution service.
To show political harassment petitioners must prove that public prosecutor, and not
just the private complainant, is acting in bad faith in prosecuting the case 26 or has lent
himself to a scheme that could have no other purpose than to place the accused in
contempt and disrepute.27 For it is only if he does so may the prosecutor, in conducting
the preliminary investigation, be said to have deserted the performance of his office to
determine objectively and impartially the existence of probable cause and thus justify
judicial intervention in what is essentially his province.
WHEREFORE, the petition for certiorari and prohibition is DISMISSED.
SO ORDERED.
Narvasa, C.J. (Chairman), Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180055 July 31, 2009

FRANKLIN M. DRILON as President and in representation of the LIBERAL PARTY OF THE
PHILIPPINES (LP), AND HON. JOSEPH EMILIO A. ABAYA, HON. WAHAB M. AKBAR, HON.
MARIA EVITA R. ARAGO, HON. PROCESSO J. ALCALA, HON. ROZZANO RUFINO BIAZON,
HON. MARY MITZI CAJAYON, HON. FREDENIL H. CASTRO, HON. GLENN ANG CHONG, HON.
SOLOMON R. CHUNGALAO, HON. PAUL RUIZ DAZA, HON. ANTONIO A. DEL ROSARIO, HON.
CECILIA S. LUNA, HON. MANUEL M. MAMBA, HON. HERMILANDO I. MANDANAS, HON.
ALVIN SANDOVAL, HON. LORENZO R. TAÑADA III, HON. REYNALDO S. UY, HON. ALFONSO
V. UMALI JR., HON. LIWAYWAY VINZONS-CHATO, Petitioners,
vs.
HON. JOSE DE VENECIA JR. in his official capacity as Speaker of the House of
Representatives; HON. ARTHUR D. DEFENSOR, SR., in his official capacity as Majority Floor
Leader of the House of Representatives, HON. MANUEL B. VILLAR, in his official capacity as
ex-officio Chairman of the Commission on Appointments, ATTY. MA. GEMMA D. ASPIRAS, in
her official capacity as Secretary of the Commission on Appointments, HON. PROSPERO C.
NOGRALES, HON. EDGARDO C. ZIALCITA, HON. ABDULLAH D. DIMAPORO, HON. JOSE
CARLOS V. LACSON, HON. EILEEN R. ERMITA-BUHAIN, HON. JOSE V. YAP, HON. RODOLFO
T. ALBANO III, HON. EDUARDO R. GULLAS, HON. CONRADO M. ESTRELLA III, HON.
RODOLFO "OMPONG" PLAZA, HON. EMMYLOU J. TALIÑO-MENDOZA and HON. EMMANUEL
JOEL J. VILLANUEVA, in their individual official capacities as "elected" members of the
Commission on Appointments, Respondents.

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

G.R. No. 183055 July 31, 2009

SENATOR MA. ANA CONSUELO A.S. MADRIGAL, Petitioner,

vs.
SENATOR MANUEL VILLAR in his capacity as Senate President and Ex-Officio Chairman of
the Commission on Appointments, REPRESENTATIVE PROSPERO NOGRALES in his
capacity as the Speaker of the House of Representatives, and THE COMMISSION ON
APPOINTMENTS, Respondents.

DECISION

CARPIO MORALES, J.:

In August 2007, the Senate and the House of Representatives elected their respective contingents
to the Commission on Appointments (CA).

The contingent in the Senate to the CA was composed of the following senators with their respective
political parties:

Sen. Maria Ana Consuelo A.S. Madrigal PDP-Laban

Sen. Joker Arroyo KAMPI

Sen. Alan Peter Cayetano Lakas-CMD

Sen. Panfilo Lacson UNO

Sen. Jinggoy Ejercito Estrada PMP

 Sen. Juan Ponce Enrile PMP

Sen. Loren Legarda NPC

Sen. Richard Gordon Lakas-CMD

Sen. Mar Roxas LP

Sen. Lito Lapid Lakas-CMD

Sen. Miriam Defensor-Santiago PRP

The members of the contingent of the House of Representatives in the CA and their respective
political parties were as follows:

Rep. Prospero C. Nograles Lakas-CMD

Rep. Eduardo C. Zialcita Lakas-CMD

Rep. Abdullah D. Dimaporo Lakas-CMD

Rep. Jose Carlos V. Lacson Lakas-CMD

Rep. Eileen R. Ermita-Buhain Lakas-CMD

Rep. Jose V. Yap Lakas-CMD

Rep. Rodolfo T. Albano III KAMPI

Rep. Eduardo R. Gullas KAMPI

Rep. Rodolfo "Ompong" G. Plaza NPC

Rep. Conrado M. Estrella NPC

Rep. Emmylou J. Taliño-Mendoza NP

Rep. Emmanuel Joel J. Villanueva CIBAC Party List

In the second week of August 2007, petitioners in the first petition, G.R. No. 180055, went to
respondent then Speaker Jose de Venecia to ask for one seat for the Liberal Party in the CA.
Speaker Jose de Venecia merely said that he would study their demand.1

During the session of the House of Representatives on September 3, 2007, petitioner in the first
petition, Representative Tañada, requested from the House of Representatives leadership2 one seat
in the CA for the Liberal Party.3 To his request, Representative Neptali Gonzales II4 begged the
indulgence of the Liberal Party "to allow the Legal Department to make a study on the matter."5

In a separate move, Representative Tañada, by letter of September 10, 2007, requested the
Secretary General of the House of Representatives the reconstitution of the House contingent in the
CA to include one seat for the Liberal Party in compliance with the provision of Section 18, Article VI
of the Constitution.6 Representative Tañada also brought the matter to the attention of then Speaker
De Venecia, reiterating the position that since there were at least 20 members of the Liberal Party in
the 14th Congress, the party should be represented in the CA.7

As of October 15, 2007, however, no report or recommendation was proffered by the Legal
Department, drawing Representative Tañada to request a report or recommendation on the matter
within three days.8

In reply, Atty. Grace Andres of the Legal Affairs Bureau of the House of Representatives informed
Representative Tañada that the department was constrained to withhold the release of its legal
opinion because the handling lawyer was directed to secure documents necessary to establish some
of the members’ party affiliations.9

Hence spawned the filing on October 31, 2007 of the first petition by petitioner former Senator
Franklin M. Drilon (in representation of the Liberal Party), et al., for prohibition, mandamus, and quo
warranto with prayer for the issuance of writ of preliminary injunction and temporary restraining
order, against then Speaker De Venecia, Representative Arthur Defensor, Sr. in his capacity as
Majority Floor Leader of the House of Representatives, Senator Manuel B. Villar in his capacity as
ex officio chairman of the CA, Atty. Ma. Gemma D. Aspiras in her capacity as Secretary of the CA,
and the individual members of the House of Representatives contingent to the CA.10 The petition in
G.R. No. 180055 raises the following issues:

a. WHETHER THE LIBERAL PARTY WITH AT LEAST TWENTY (20) MEMBERS WHO SIGNED
HEREIN AS PETITIONERS, IS CONSTITUTIONALLY ENTITLED TO ONE (1) SEAT IN THE
COMMISSION ON APPOINTMENTS.

b. WHETHER THE HOUSE OF REPRESENTATIVES’ RESPONDENTS HAVE COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CONSTITUTING THE COMMISSION ON APPOINTMENTS IN CONTRAVENTION OF THE
REQUIRED PROPORTIONAL CONSTITUTION BY DEPRIVING THE LIBERAL PARTY OF ITS
CONSTITUTIONAL ENTITLEMENT TO ONE (1) SEAT THEREIN.

c. WHETHER AS A RESULT OF THE GRAVE ABUSE OF DISCRETION COMMITTED BY THE

HOUSE OF REPRESENTATIVES RESPONDENTS, THE WRITS PRAYED FOR IN THIS
PETITION BE ISSUED NULLIFYING THE CURRENT COMPOSITION OF THE COMMISSION ON
APPOINTMENTS, RESTRAINING THE CURRENT HOUSE OF REPRESENTATIVE MEMBERS
FROM SITTING AND PARTICIPATING IN THE PROCEEDINGS OF THE COMMISSION ON
APPOINTMENTS, OUSTING THE AFFECTED RESPONDENTS WHO USURPED, INTRUDED
INTO AND UNLAWFULLY HELD POSITIONS IN THE COMMISSION ON APPOINTMENTS AND
REQUIRING THE RESPONDENTS TO RECONSTITUTE AND/OR REELECT THE MEMBERS OF
SAID COMMISSION.11 (Italics in the original)

And it prays that this Court:

a. Immediately upon the filing of the instant Petition, issue a Temporary Restraining Order
and/or a Writ of Preliminary Prohibitory and Mandatory Injunction, enjoining all Respondents
and all persons under their direction, authority, supervision, and control from further
proceeding with their actions relating to the illegal and unconstitutional constitution of the
Commission on Appointments and to the unlawful exercise of its members’ functions,
contrary to the rule on proportional representation of political parties with respect to the
House of Representatives contingent in the said Commission;
 b. After careful consideration of the merits of the case, render judgment making the
injunction permanent and ordering Respondents and all persons under their direction,
authority, supervision, and control;

xxxx

c. Declare Respondents’ action in not allotting one (1) seat to Petitioners null and void for
being a direct violation of Section 18, Article VI of the Constitution;

d. Declare the proceedings of the Commission on Appointments null and void, insofar as
they violate the rule on proportional representation of political parties in said Commission;

e. Oust the affected respondents, whoever they are, who usurped, intruded into and have
unlawfully held positions in the Commission on Appointments and

f. Require Respondents to alter, reorganize, reconstitute and reconfigure the composition of

the Commission on Appointments in accordance with proportional representation based on
the actual numbers of members belonging to duly accredited and registered political parties
who were elected into office during the last May 14, 2007 Elections by, at the very least,
respecting and allowing Congressman Alfonso V. Umali, Jr. as the duly nominated
Commission on Appointments member of the Liberal Party of the Philippines to sit therein as
such.12

Respondents Senator Villar and CA Secretary Aspiras filed their Comment13 on December 6, 2007,
moving for the dismissal of the petition on these grounds:

I. THE POWER TO ELECT MEMBERS TO THE COMMISSION ON APPOINTMENTS BELONGS

TO EACH HOUSE OF CONGRESS PURSUANT TO THE CONSTITUTION. AS SUCH, THE
PETITION IS NOT DIRECTED AT THE HEREIN RESPONDENTS.

II. THE CONSTITUTION DOES NOT REQUIRE THAT THE COMMISSION MUST HAVE
COMPLETE MEMBERSHIP IN ORDER THAT IT CAN FUNCTION. WHAT THE CONSTITUTION
REQUIRES IS THAT THERE MUST AT LEAST BE A MAJORITY OF ALL THE MEMBERS OF
THE COMMISSION FOR IT TO VALIDLY CONDUCT ITS PROCEEDINGS AND TRANSACT ITS
BUSINESS.14(Emphasis in the original)

Then Speaker De Venecia and Representative Defensor filed their Comment and Opposition15 on
February 18, 2008, moving too for the dismissal of the petition on these grounds:

I. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF DISCRETION THAT

WILL JUSTIFY THE GRANT OF THE EXTRAORDINARY WRIT OF MANDAMUS.16

II. THE LIBERAL PARTY DOES NOT POSSESS THE REQUISITE NUMBER OF MEMBERS THAT
WOULD ENTITLE THE PARTY TO A SEAT IN THE COMMISSION ON APPOINTMENTS. IT IS,
THEREFORE, NOT THE PROPER PARTY TO INSTITUTE THE INSTANT PETITION FOR QUO
WARRANTO.17

III. THE PETITIONERS FAILED TO EXHAUST THE REMEDIES AVAILABLE TO THEM.18

IV. THE CONFLICTING CLAIMS OF THE PARTIES AS TO THE AFFILIATION OF THE

MEMBERS NEED TO BE SETTLED IN A TRIAL.19 (Emphasis in the original)
Meantime, Senator Ma. Ana Consuelo A.S. Madrigal of PDP-Laban, by separate letters of April 17,
2008 to Senator Villar and Speaker Prospero Nograles, claimed that the composition of
the Senate contingent in the CA violated the constitutional requirement of proportional
representation for the following reasons:

1. PMP has two representatives in the CA although it only has two members in the Senate
and thus [is] entitled only to one (1) seat.

2. KAMPI has only one (1) member in the Senate and thus is not entitled to a CA seat and
yet it is represented in the CA.

3. PRP has only one (1) member in the Senate and thus is not entitled to a CA seat and yet it
is represented in the CA.

4. If Senators Richard Gordon and Pilar Juliana Cayetano are Independents, then Sen.
Gordon cannot be a member of the CA as Independents cannot be represented in the CA
even though there will be three Independents in the CA.

5. If Sen. Alan Peter Cayetano is now NP, he still can sit in the CA representing NP.20

She also claimed that the composition of the House of Representatives contingent in the CA violated
the constitutional requirement of proportional representation for the following reasons:

1. Lakas-CMD currently has five (5) members in the Commission on Appointments although
it is entitled only to four (4) representatives and thus [is] in excess of a member;

2. KAMPI currently has three (3) members in the Commission on Appointments although it is
entitled only to two (2) representatives and thus is excess of a member;

3. Liberal Party is not represented in the Commission on Appointments although it is entitled

to one (1) nominee; and

4. Party-List CIBAC has a representative in the Commission on Appointments although it

only has two members in the House of Representatives and therefore [is] not entitled to any
seat.21

Senator Madrigal thus requested the reorganization of the membership of the CA and that, in the
meantime, "all actions of [the] CA be held in abeyance as the same may be construed as illegal and
unconstitutional."22

By letter of May 13, 2008, Senator Madrigal again wrote Senator Villar as follows:

Today, I was advised that the Committee on Budget and Management of Senator Mar Roxas has
endorsed the ad interim appointment of Rolando G. Andaya as Secretary of the Department of
Budget and Management for approval by the CA in the plenary. I believe it is imperative that the
serious constitutional questions that I have raised be settled before the plenary acts on this
endorsement by the Committee on Budget and Management. Otherwise, like Damocles’ sword, a
specter of doubt continues to be raised on the validity of actions taken by the CA and its
committees.23
Still later or on May 19, 2008, Senator Madrigal sent another letter to Senator Villar declaring that
she "cannot in good conscience continue to participate in the proceedings of the CA, until such time
as [she] get[s] a response to [her] letters and until the constitutional issue of the CA’s composition is
resolved by the leadership of the Commission,"24 and that without any such resolution, she would be
forced to invoke Section 20 of the CA rules against every official whose confirmation would be
submitted to the body for deliberation.25

The CA Committee on Rules and Resolutions, by letter-comment of May 26, 2008, opined that the
CA has neither the power nor the discretion to reject a member who is elected by either House, and
that any complaints about the election of a member or members should be addressed to the body
that elected them.26

By letter of May 28, 2008, Senator Villar advised Senator Madrigal as follows:

xxxx

Noting your position that you will not continue to participate in the proceedings of the CA … "until the
constitutional issue of the CA’s composition is resolved by the leadership of the Commission" x x
x, the Secretary of the Commission, upon my instructions, transmitted the same to the CA
Committee on Rules and Resolutions. It was my intention to have the Committee study and
deliberate on the matter and to recommend what step/s to take on your request that "all actions of
the Commission be held in abeyance" x x x.

In view however, of your manifestation during the May 26, 2008 meeting of the CA Committee on
Rules and Resolutions, and of the written comment of Sen. Arroyo that "If there is a complaint in
the election of a member or members, it shall be addressed to the body that elected them, namely
the Senate and/or the House," I have given instructions to transmit the original copies of your letters
to the Senate Secretary for their immediate inclusion in the Order of Business of the Session of the
Senate so that your concerns may be addressed by the Senate in caucus and/or in
plenary.27 (Emphasis and underscoring supplied)

Undaunted, Senator Madrigal, by letter of June 2, 2008 addressed to Senator Villar, reiterated her
request that all actions of the CA be held in abeyance pending the reorganization of both the Senate
and House of Representatives contingents.28

Senator Madrigal thereafter filed on June 13, 2008 the second petition, G.R. No. 183055, for
prohibition and mandamus with prayer for issuance of temporary restraining order/writ of preliminary
injunction against Senator Villar in his capacity as Senate President and Ex-Officio Chairman of the
CA, Speaker Nograles, and the CA,29alleging that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction

A. . . . IN FAILING TO COMPLY WITH THE CONSTITUTIONALLY REQUIRED PROPORTIONAL

PARTY REPRESENTATION OF THE MEMBERS OF THE COMMISSION ON APPOINTMENTS;

B. . . . IN CONTINUOUSLY CONDUCTING HEARINGS AND PROCEEDINGS ON THE

APPOINTMENTS DESPITE THE COMMISSION ON APPOINTMENTS’ UNCONSTITUTIONAL
COMPOSITION WHICH MUST BE PROHIBITED BY THIS HONORABLE COURT; and

C. . . . IN FAILING, DESPITE REPEATED DEMANDS FROM PETITIONER, TO RE-ORGANIZE

THE COMMISSION ON APPOINTMENTS IN ACCORDANCE WITH THE MANDATED
PROPORTIONAL PARTY REPRESENTATION OF THE 1987 CONSTITUTION, WHICH
REQUIREMENT MUST BE ENFORCED BY THIS HONORABLE COURT.30 (Emphasis in the
original)

She thus prayed for the

1. . . . issu[ance of] a temporary restraining order/a writ of preliminary injunction to enjoin

Respondents from proceeding with their illegal and unlawful actions as officials and
members of the Commission on Appointments which composition is unconstitutional,
pending resolution of the instant Petition;

2. Declar[ation that] the composition of the Commission on Appointments [is] null and void
insofar as it violates the proportional party representation requirement mandated by Article
VI, Section 18 of the 1987 Philippine Constitution;

3. Issu[ance of] a Writ of Prohibition against respondents Senate President Manuel Villar,
Speaker Prospero Nograles and Secretary Gemma Aspiras to desist from further proceeding
with their illegal and unlawful actions as officers of the Commission on Appointments, the
composition of which is null and void for being violative of the proportional party
representation requirement under Article VI, Section 18 of the 1987 Philippine Constitution;
and

4. Issu[ance of] a Writ of Mandamus commanding respondents Senate President Manuel

Villar, Speaker Prospero Nograles and Secretary Gemma Aspiras to reorganize and
reconstitute the Commission on Appointments in accordance with the 1987 Constitution.31

The Court consolidated G.R. No. 18005532 and G.R. No. 183055 on July 1, 2008.

Petitioners in the first petition, G.R. No. 180055, later filed on August 15, 2008 a Motion with Leave
of Court to Withdraw the Petition,33 alleging that with the designation of Representative Alfonso V.
Umali, Jr. of the Liberal Party as a member of the House of Representatives contingent in the CA in
replacement of Representative Eduardo M. Gullas of KAMPI, their petition had become moot and
academic.

In his Comment of August 19, 2008 on the second petition, respondent Senator Villar proffered the
following arguments:

I.

Petitioner has no standing to file [the] petition.

II.

Petitioner failed to observe the doctrine of primary jurisdiction or prior resort. Each House of
Congress has the sole function of reconstituting or changing the composition of its own
contingent to the CA.

III.

Petitioner is estopped.

IV.
Presumption of regularity in the conduct of official functions.

V.

The extraordinary remedies of Prohibition and Mandamus and the relief of a TRO are not
available to the Petitioner.34 (Emphasis in the original; underscoring supplied)

In his Comment and Opposition35 filed on September 3, 2008, Speaker Nograles proffered the
following arguments:

A. WITH RESPECT TO THE HOUSE OF REPRESENTATIVES, THE PETITIONS HAVE ALREADY

BECOME MOOT AND ACADEMIC UPON THE ELECTION OF REPRESENTATIVE ALFONSO V.
UMALI, JR., MEMBER OF THE LIBERAL PARTY, TO THE HOUSE CONTINGENT TO THE
COMMISSION ON APPOINTMENTS.36

B. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF DISCRETION THAT

WILL JUSTIFY THE ASSUMPTION OF JURISDICTION BY THE

HONORABLE COURT AND THE GRANT OF THE EXTRAORDINARY WRITS OF MANDAMUS

AND PROHIBITION.37

C. THE REMEDY OF THOSE WHO SEEK TO RECONSTITUTE THE HOUSE CONTINGENT TO

THE COMMISSION ON APPOINTMENTS RESTS, IN THE FIRST INSTANCE, WITH THE HOUSE
OF REPRESENTATIVES.38

D. CONSIDERING THE AFOREMENTIONED FACTS AND JURISPRUDENCE, IT IS SUBMITTED

THAT SENATOR MADRIGAL HAS NO STANDING TO PURSUE THE INSTANT CASE.

E. THE PETITION IS NOT ACCOMPANIED BY A VERIFICATION AND CERTIFICATION OF NON-

FORUM SHOPPING AS REQUIRED BY RULE 65 SECTIONS 2 AND 3 AND SUPREME COURT
ADMINISTRATIVE CIRCULAR NO. 28-91. (Emphasis and underscoring in the original)

The first petition, G.R. No. 180055, has thus indeed been rendered moot with the designation of a
Liberal Party member of the House contingent to the CA, hence, as prayed for, the petition is
withdrawn.

As for the second petition, G.R. No. 183055, it fails.

Senator Madrigal failed to show that she sustained direct injury as a result of the act complained
of.39 Her petition does not in fact allege that she or her political party PDP-Laban was deprived of a
seat in the CA, or that she or PDP-Laban possesses personal and substantial interest to confer on
her/it locus standi.

Senator Madrigal’s primary recourse rests with the respective Houses of Congress and not with this
Court. The doctrine of primary jurisdiction dictates that prior recourse to the House is necessary
before she may bring her petition to court.40 Senator Villar’s invocation of said doctrine is thus well-
taken, as is the following observation of Speaker Nograles, citing Sen. Pimentel, Jr. v. House of
Representatives Electoral Tribunal:41

In order that the remedies of Prohibition and Mandamus may be availed of, there must be "no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law". lavv ph!1
It is worth recalling that, in the 11th Congress, Senator Aquilino Pimentel advocated the allocation of
a position in the Commission on Appointments for the Party-List Representatives. Just like the
Petitioner in the instant case, Senator Pimentel first wrote to the Senate President, requesting that
the Commission on Appointments be restructured to conform to the constitutional provision on
proportional representation. xxx Without awaiting final determination of the question xxx, Pimentel
filed a Petition for Prohibition and Mandamus with the Supreme Court. In the said case, the
Honorable Court ruled:

"The Constitution expressly grants to the House of Representatives the prerogative, within
constitutionally defined limits, to choose from among its district and party-list representatives those
who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of
the Constitution explicitly confers on the Senate and on the House the authority to elect among their
members those who would fill the 12 seats for Senators and 12 seats for House members in the
Commission on Appointments. Under Section 17, Article VI of the Constitution, each chamber
exercises the power to choose, within constitutionally defined limits, who among their members
would occupy the allotted 6 seats of each chamber’s respective electoral tribunal.

xxxx

Thus, even assuming that party-list representatives comprise a sufficient number and have
agreed to designate common nominees to the HRET and the CA, their primary recourse
clearly rests with the House of Representatives and not this Court. Under Sections 17 and 18,
Article VI of the Constitution, party-list representatives must first show to the House that they
possess the required strength to be entitled to seats in the HRET and the CA. Only if the House fails
to comply with the directive of the Constitution on proportional representation of political parties in
the HRET and the CA can the party-list representatives seek recourse to this Court under its power
of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is
necessary before petitioners may bring the instant case to the court. Consequently,
petitioner’s direct recourse to this Court is premature.

Following the ruling in Pimentel, it cannot be said that recourse was already had in the House of
Representatives. Furnishing a copy of Petitioner’s letter to the Senate President and to the Speaker
of the House of Representatives does not constitute the primary recourse required prior to the
invocation of the jurisdiction of the Supreme Court. Further, it is the Members of the House who
claim to have been deprived of a seat in the Commission on Appointments that must first show to
the House that they possess the required numerical strength to be entitled to seats in the
Commission on Appointments. Just like Senator Pimentel, demanding seats in the Commission on
Appointments for Congressmen, who have not even raised the issue of its present composition in
the House, is not Senator Madrigal’s affair.42 (Italics, underscoring, and emphasis supplied by
Representative Nograles)

It bears noting that Senator Villar had already transmitted original copies of Senator Madrigal’s
letters to the Senate Secretary for inclusion in the Order of Business of the Session of the Senate to
address her concerns. Senator Madrigal’s filing of the second petition is thus premature.

Senator Madrigal’s suggestion – that Senators Pilar Juliana Cayetano and Richard Gordon be
considered independent senators such that the latter should not be allowed to be a member of the
CA,43 and that Senator Alan Peter Cayetano be considered a member of the NP such that he may sit
in the CA as his inclusion in NP will entitle his party to one seat – involves a determination of party
affiliations, a question of fact which the Court does not resolve.
WHEREFORE, the Motion with Leave of Court to Withdraw the Petition in G.R. No. 180055
is GRANTED. The Petition is WITHDRAWN. The Petition in G.R. No. 183055 is DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING ANTONIO T. CARPIO

Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO RENATO C. CORONA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION* DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

G.R. Nos. 132875-76 November 16, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.

YNARES-SANTIAGO, J.:

This Court has declared that the state policy on the heinous offense of rape is clear and
unmistakable. Under certain circumstances, some of them present in this case, the offender may be
sentenced to a long period of confinement, or he may suffer death. The crime is an assault on
human dignity. No legal system worthy of the name can afford to ignore the traumatic consequences
for the unfortunate victim and grievous injury to the peace and good order of the community.1

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral
depravity, when committed against a minor.2

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant is always scrutinized with extreme caution.3

In the present case, there are certain particulars which impelled the court to devote an even more
painstaking and meticulous examination of the facts on record and a similarly conscientious
evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve
(12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive.
The victim was peddled for commercial sex by her own guardian whom she treated as a foster
father. Because the complainant was a willing victim, the acts of rape were preceded by several acts
of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is
a member of Congress. Inspite of his having been charged and convicted by the trial court for
statutory rape, his constituents liked him so much that they knowingly re-elected him to his
congressional office, the duties of which he could not perform.

Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial
sex worker is bound to attract widespread media and public attention. In the words of accused-
appellant, "he has been demonized in the press most unfairly, his image transmogrified into that of a
dastardly, ogre, out to get his slimy hands on innocent and naïve girls to satiate his lustful
desires."4 This Court, therefore, punctiliously considered accused-appellant’s claim that he suffered
"invidiously discriminatory treatment." Regarding the above allegation, the Court has ascertained
that the extensive publicity generated by the case did not result in a mistrial; the records show that
the accused had ample and free opportunity to adduce his defenses.

This is an appeal from the decision5 of the Regional Trial Court of Makati, Branch 62, in Criminal
Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of
statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-
1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the
Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child
Abuse Law.

There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997,
and 96-1998, where the accused-appellant was acquitted of the charges of acts of lasciviousness for
failure of the prosecution to prove his guilt beyond reasonable doubt.

On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts
of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to
Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion
of said informations for the crime of statutory rape state:

In Criminal Case No. 96-1985:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old
minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined
and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn
Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.6

In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old
minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined
and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven
year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.7

For acts of lasciviousness, the informations8 under which accused-appellant was convicted were
identical except for the different dates of commission on June 14, 1996; June 15, 1996; June 16,
1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old
minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF
LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise
known as the Special Protection of Children against Abuse, Exploitation and Discrimination
Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers,
Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, did then and there wilfully, unlawfully and
feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole
body, and vagina, suck her nipples and insert his finger and then his tongue into her
vagina, place himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her damage and
prejudice.

CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the
different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00
respectively.

Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial
court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8) main
witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A
to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26)
witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The
records of the case are extremely voluminous.

The People’s version of the facts, culled mainly from the testimony of the victim, are as follows:

Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-
shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio
Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose
ostensible source of income was selling longganiza and tocino and accepting boarders at his house.
On the side, he was also engaged in the skin trade as a pimp.

Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was
also under the care of Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn
was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio
whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by
Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as
one of the girls sold by Simplicio for sexual favors.

Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office
located near Robinson’s Galleria. Rosilyn and Simplicio were brought there and introduced by a
talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn
become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio
answered, "10. She is going to be 11 on May 11." Accused-appellant inquired if Rosilyn knows how
to sing. Simplicio told Rosilyn to sing, so she sang the song, "Tell Me You Love Me." Accused-
appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked
if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired if
Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyn’s left
breast. Thereafter, accused-appellant assured them that he would help Rosilyn become an actress
as he was one of the producers of the TV programs, "Valiente" and "Eat Bulaga."

Simplicio and Suarez then discussed the execution of a contract for Rosilyn’s movie career.
Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter would
have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went
home, accused-appellant gave Rosilyn P2,000.00.

The second time Rosilyn met accused-appellant was at his condominium unit, located at Room
1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract and his plan
to finance Rosilyn’s studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn,
Shandro and Simplicio left.

The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her
acting career. Accused-appellant referred the preparation of Rosilyn’s contract to his lawyer, who
was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards the
elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellant’s
condominium unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told
Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while,
accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards
Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye.
Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, "Halik lang
naman."

Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came
in and entered the bathroom. He came out clad in a long white T-shirt on which was printed the
word, "Dakak." In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted
to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but
accused-appellant answered, "Daddy mo naman ako." Accused-appellant then took off Rosilyn’s
blouse and skirt. When he was about to take off her panties, Rosilyn said, "Huwag po." Again,
accused-appellant told her, "After all, I am your Daddy." Accused-appellant then removed her
panties and dressed her with the long white T-shirt.

The two of them watched television in bed. After sometime, accused-appellant turned off the lamp
and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her
breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, "Tama na po."
Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-
appellant told Rosilyn to sleep.

The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and
kissing her. He told her to get up, took her hand and led her to the bathroom. He removed Rosilyn’s
shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyn’s body, he
caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her
with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress
up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower.

Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When
accused-appellant entered the room, he knelt in front of her, removed her panties and placed her
legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn
P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the
Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to
Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz
Towers. Simplicio told her that everything was alright as long as accused-appellant does not have
sexual intercourse with her.

That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the
Ritz Towers. After Simplicio left, accused-appellant removed Rosilyn’s clothes and dressed her with
the same long T-shirt. They watched television for a while, then accused-appellant sat beside
Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and
inserted his finger into her vagina. Then, accused-appellant removed his own clothes, placed his
penis between Rosilyn’s thighs and made thrusting motions until he ejaculated on her thighs.
Thereafter, accused-appellant kissed her and told her to sleep.

The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he
rubbed soap all over her body, washed her hair, and thereafter rinsed her body and dried her hair.
While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed
her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate
breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit.
On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her
vagina, she should refuse.

At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found
accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accused-
appellant, then he left. Accused-appellant took off Rosilyn’s clothes and dressed her with a long T-
shirt on which was printed a picture of accused-appellant and a woman, with the caption, "Cong.
Jalosjos with his Toy." They watched television for a while, then accused-appellant lay beside
Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself
between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed
the same against Rosilyn’s vagina. This caused Rosilyn pain inside her sex organ. Thereafter,
accused-appellant fondled her breasts and told her to sleep.

When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer
around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody touching
her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off
to school with Simplicio, who arrived to fetch her.

The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 o’clock
in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again
put on her the long shirt he wanted her to wear. After watching television for a while, accused-
appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her
vagina. Then, he clipped his penis between Rosilyn’s thighs, and made thrusting motions until he
ejaculated. Thereafter, Rosilyn went to sleep.

The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and
fondling her sex organ. She, however, ignored him and went back to sleep. When she woke up, she
found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when
the latter came to pick her up.

On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took
photographs of Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her
breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her
pubis, and finally, while straddled on a chair facing the backrest, showing her legs.

Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his
finger into her vagina. The following morning, she woke up and found the P5,000.00 left by accused-
appellant on the table. She recalled that earlier that morning, she felt somebody caressing her
breasts and sex organ.

On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait
for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long
white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her
lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into
her vagina, causing her to cry in pain. Accused-appellant stopped and told her to sleep.

The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her
breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After
bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as
Simplicio arrived, Rosilyn gave her the money and then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was
waiting in his bedroom. He took off Rosilyn’s clothes, including her panties, and dressed her with a
long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed
Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made
Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his
finger in her vagina and mounted himself between her legs with his hands rested on her sides. After
that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant
made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep.

In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not
wake up. When she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio
when he came to fetch her.

On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-
appellant was about to leave, so he told them to come back later that evening. The two did not
return.

The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their
boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn
statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department
of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted
an investigation, which eventually led to the filing of criminal charges against accused-appellant.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The
examination yielded the following results:

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical with
pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen
is flat and soft

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the
pinkish brown labia minora presenting in between. On separating the same disclosed an
elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep
healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to
the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal
canal is narrow with prominent rugosities. Cervix is firm and closed.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.9

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his
brother, Dominador "Jun" Jalosjos, whom Rosilyn had met, once at accused-appellant’s Dakak office
and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates
Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to
a small group of blackmailers who wanted to extort money from him, and to his political opponents,
particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political
career and boost their personal agenda.

More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines
(PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He
submitted in evidence airline ticket no. 10792424,10 showing that he was on board Flight PR 165; the
said flight’s passenger’s manifest,11 where the name JALOSJOS/RM/MR appears; and photographs
showing accused-appellant’s constituents welcoming his arrival and showing accused-appellant
talking with former Mayor Hermanico Carreon and Fiscal Empainado.

Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from
Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer.
Upon arrival and after talking to his representatives, he proceeded to his residence known as
"Barangay House" in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.

On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the
house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the
Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the "Barangay
House" in Taguilon.

On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his
political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went
home and slept in the "Barangay House."

On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the
"Barangay House."

On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The
blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.

On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City.
After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City.

He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance
when he went to Manila until July 9, 1996, when he attended a conference called by the President of
the Philippines.

Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from
Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed
until the President of the Philippines arrived.

To buttress the theory of the defense, Dominador "Jun" Jalosjos testified that he was the one, and
not accused-appellant, whom Rosilyn met on three occasions. These occurred once during the first
week of May 1996, at accused-appellant’s Dakak office where Rosilyn and Simplicio Delantar were
introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn,
and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show
business.
Dominador’s admission of his meetings with Rosilyn on three instances were limited to interviewing
her and assessing her singing and modeling potentials. His testimony made no mention of any
sexual encounter with Rosilyn.

After trial, the court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in
the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised
Penal Code. He is hereby declared CONVICTED in each of these cases.

2. Accordingly, he is sentenced to:

2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.

3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the
prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO
JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under
Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610
otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of
these cases;

4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years,
eight (8) months and one (1) day of prision mayor in its medium period, as maximum,
to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its
medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY

THOUSAND (P20,000.00) as moral damages for each of the cases;

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the
prosecution has failed to prove beyond reasonable doubt the guilt of the accused, ROMEO
JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground
of reasonable doubt, the accused in these cases is hereby ACQUITTED.

SO ORDERED.12

Hence, the instant appeal. Accused-appellant contends:

A.

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED

ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA
OF INCONSISTENCIES AND UNTRUTHS.
 B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE

CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.

C.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF

PRIVATE COMPLAINANT’S FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.

D.

THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT
WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS
ALLEGEDLY TOOK PLACE.

E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED
AGAINST THE PRIVATE COMPLAINANT.13

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost
caution. The constitutional presumption of innocence requires no less than moral certainty beyond
any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the
prosecution must stand or fall on its own merits and is not allowed to draw strength from the
weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself
that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private
complainant’s testimony, the errors assigned by accused-appellant, particularly the first three, are
focused on the issue of credibility.

Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995,
96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial
court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her stories
and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges
the application of the doctrine of "falsus in uno falsus in omnibus" (false in part, false in everything).14

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is
in fact rarely applied in modern jurisprudence.15 Thus, in People v. Yanson-Dumancas,16 citing
People v. Li Bun Juan,17 this Court held that:

... In this connection it must be borne in mind that the principle falsus in uno falsus in
omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony of
a witness with respect to some facts and disbelieve it with respect to other facts. In People
vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the
Court of Appeals from 1 Moore on Facts, p. 23:

"18. Testimony may be partly credited and partly rejected. --- Trier of facts are not
bound to believe all that any witness has said; they may accept some portions of his
testimony and reject other portions, according to what seems to them, upon other
facts and circumstances to be the truth… Even when witnesses are found to have
deliberately falsified in some material particulars, the jury are not required to reject
 the whole of their uncorroborated testimony, but may credit such portions as they
deem worthy of belief." (p. 945)18

Being in the best position to discriminate between the truth and the falsehood, the trial court's
assignment of values and weight on the testimony of Rosilyn should be given credence.
Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment
of which, as oft-repeated, is best made by the trial court because of its untrammeled opportunity to
observe her demeanor on the witness stand.

On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not believe
Rosilyn when she claimed she was raped. Testimonies of rape victims especially those who
are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993)
considering that "no woman would concoct a story of defloration, allow an examination of her
private parts and thereafter allow herself to be perverted in a public trial if she was not
motivated solely by the desire to have the culprit apprehended and punished." (People v.
Buyok, 235 SCRA 622 [1996]).

When asked to describe what had been done to her, Rosilyn was able to narrate
spontaneously in detail how she was sexually abused. Her testimony in this regard was firm,
candid, clear and straightforward, and it remained to be so even during the intense and rigid
cross-examination made by the defense counsel.19

Accused-appellant next argues that Rosilyn’s direct and redirect testimonies were rehearsed and
lacking in candidness. He points to the supposed hesitant and even idiotic answers of Rosilyn on
cross and re-cross examinations. He added that she was trained to give answers such as, "Ano
po?", "Parang po," "Medyo po," and "Sa tingin ko po."

Accused-appellant’s arguments are far from persuasive. A reading of the pertinent transcript of
stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and
lascivious conduct committed on her by accused-appellant. She answered in clear, simple and
natural words customary of children of her age. The above phrases quoted by accused-appellant as
uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child
witnesses like her.

At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have
given some ambiguous answers, they refer merely to minor and peripheral details which do not in
any way detract from her firm and straightforward declaration that she had been molested and
subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that
even the most candid witness oftentimes makes mistakes and confused statements. At times, far
from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of
veracity.20

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five
(5) sworn statements executed by Rosilyn as well as in the interviews and case study conducted by
the representatives of the DSWD. In particular, accused-appellant points to the following documents:

(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A.
Carrasco of the Pasay City Police;
 (2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents
Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;

(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;

(4) DSWD Final Case Study Report dated January 10, 1997.

It must be stressed that "rape" is a technical term, the precise and accurate definition of which could
not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain
to her the intricacies of rape, she expectedly could not distinguish in her affidavits and consequently
disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation
of law constitute the crime of rape. This is especially true in the present case where there was no
exhaustive and clear-cut evidence of full and complete penetration of the victim’s vagina. It may well
be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration
of the victim’s vagina to qualify a sexual act to rape.

In People v. Campuhan,21 we ruled that rape is consummated "by the slightest penetration of the
female organ,i.e., touching of either labia of the pudendum by the penis." There need not be full and
complete penetration of the victim’s vagina for rape to be consummated. There being no showing
that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she
was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be
expected to intelligibly declare that accused-appellant’s act of pressing his sex organ against her
labia without full entry of the vaginal canal amounted to rape.

In the decision of the trial court, the testimony on one of the rapes is cited plus the court’s mention of
the jurisprudence on this issue, to wit:

Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your
back was rested on a pillow and your legs were spread wide apart, what else did he do?

A: He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari
ko." (Italics supplied)

Q: And, after doing that: "Idinikit-dikit niya yong ari niya sa ari ko"; what else did he do?

A: After that, "Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko."
(underscoring supplied)

(pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full
penetration of the male organ into the vagina of the woman. It is enough that there be proof
of the entrance of the male organ within the labia of the pudendum of the female organ.
(People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs.
Bacani, 181 SCRA 393). "Penetration of the penis by entry into the lips of the female organ
suffices to warrant a conviction." (People vs. Galimba, G.R. No. 111563-64, February 20,
1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that
the accused pressed against ("idiniin") and pointed to ("itinutok") Rosilyn’s vagina his sexual
organ on two (2) occasions, two (2) acts of rape were consummated.22
Moreover, it must be borne in mind that Rosilyn’s purpose in executing the affidavits on August 22
and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not accused-appellant.
As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the object of the said complaint.

Additionally, Rosilyn’s statements, given to the NBI on September 11 and 19, 1996, concerned
mainly the identification of pictures. There was thus no occasion for her to narrate the details of her
sexual encounter with accused-appellant.

As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with
Rosilyn were specially focused on the emotional and psychological repercussions of the sexual
abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence
thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to
reveal every minute aspect of the sexual molestations complained of.

At any rate, the inconsistencies between the affidavits and Rosilyn’s testimony, if at all they existed,
cannot diminish the probative value of Rosilyn’s declarations on the witness stand. The consistent
ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her
testimonies given in open court, the latter commands greater weight than the former.23

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave
the name Congressman Romeo Jalosjos as her abuser only because that was the name given to
her by the person to whom she was introduced. That same name, accused-appellant claims, was
merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-
appellant’s office desk. Accused-appellant presented his brother, Dominador "Jun" Jalosjos, in an
attempt to cast doubt on his culpability. It was Dominador "Jun" Jalosjos who allegedly met and
interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the
fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4,
which depict Dominador "Jun" Jalosjos. In the same vein, accused-appellant claims that the resulting
cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles
the facial appearance of Dominador "Jun" Jalosjos. Accused-appellant also points out that Rosilyn
failed to give his correct age or state that he has a mole on his lower right jaw.

Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and
unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial
cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant
as her abuser based on the name she heard from the person to whom she was introduced and on
the name she saw and read in accused-appellant’s office. Verily, a person’s identity does not
depend solely on his name, but also on his physical features. Thus, a victim of a crime can still
identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,24ruled
that:

It matters little that the eyewitness initially recognized accused-appellant only by face… [the
witness] … acted like any ordinary person in making inquiries to find out the name that
matched [appellant’s] face. Significantly, in open court, he unequivocally identified accused-
appellant as their assailant.

Even in the case of People v. Timon,25 relied upon by accused-appellant to discredit his
identification, this Court said that even assuming that the out-of-court identification of accused-
appellant was defective, their subsequent identification in court cured any flaw that may have initially
attended it.
In light of the foregoing, Rosilyn’s failure to identify accused-appellant out of the 16 pictures shown
to her does not foreclose the credibility of her unqualified identification of accused-appellant in open
court. The same holds true with the subject cartographic sketch which, incidentally, resembles
accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador
Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it
logically follows that the same drawing would definitely look like accused-appellant.

Likewise, Rosilyn’s failure to correctly approximate the age of accused-appellant and to state that he
has a mole on the lower right jaw, cannot affect the veracity of accused-appellant’s identification. At
a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to
accused-appellant’s mole, the Solicitor General is correct in contending that said mole is not so
distinctive as to capture Rosilyn’s attention and memory. When she was asked to give additional
information about accused-appellant, Rosilyn described him as having a "prominent belly." This, to
our mind, is indeed a more distinguishing feature that would naturally catch the attention of an
eleven year-old child like Rosilyn.

In his fifth assigned error, accused-appellant insists that the words "idinikit," "itinutok," and "idiniin-
diin," which Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do
not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see
accused-appellant’s penis in the supposed sexual contact. In fact, they stressed that Rosilyn
declared that accused-appellant’s semen spilled in her thighs and not in her sex organ.

Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming
that his penis touched or brushed Rosilyn’s external genitals, the same is not enough to establish
the crime of rape.

True, in People v. Campuhan,26 we explained that the phrase, "the mere touching of the external
genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal
knowledge," means that the act of touching should be understood here as inherently part of the entry
of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the
pudendum. We further elucidated that:

The pudendum or vulva is the collective term for the female genital organs that are visible in
the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is pigmented, while the
inner surface is a thin skin which does not have any hairs but has many sebaceous glands.
Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia
majora must be entered for rape to be consummated, and not merely for the penis to stroke
the surface of the female organ. Thus, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female organ, i.e., touching of either
labia of the pudendum by the penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness.27

In the present case, there is sufficient proof to establish that the acts of accused-appellant went
beyond "strafing of the citadel of passion" or "shelling of the castle of orgasmic potency," as depicted
in the Campuhan case, and progressed into "bombardment of the drawbridge [which] is invasion
enough,"28 there being, in a manner of speaking, a conquest of the fortress of ignition. When the
accused-appellant brutely mounted between Rosilyn’s wide-spread legs, unfetteredly touching,
poking and pressing his penis against her vagina, which in her position would then be naturally wide
open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed
by accused-appellant that his penis or that of someone who looked like him, would under the
circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between
accused-appellant’s penis, and at the very least, the labia of the pudendum of Rosilyn, was
confirmed when she felt pain inside her vagina when the "idiniin" part of accused appellant’s sex
ritual was performed.

The incident on June 18, 1996 was described by Rosilyn as follows:

PROS. ZUNO:

Q. And, after kissing your lips; after kissing you in your lips, what else did he do?

A. After that, he was lifting my shirt.

Q. Now, while he was lifting your shirt, what was your position; will you tell the court?

A. I was lying, sir.

Q. Lying on what?

A. On the bed, sir.

Q. And, after lifting your shirt, what else did he do?

A. He spread my legs sir.

Q. And, after spreading your legs apart; what did he do?

A. After that, he lifted his shirt and held his penis.

Q. And while he was holding his penis; what did he do?

A. He pressed it in my vagina.

ATTY. FERNANDEZ:

May we request that the vernacular be used?

A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.

PROS. ZUNO:

May I respectfully move that the word: "idinikit-dikit niya ang ari niya sa ari ko," be
incorporated?

Q. And while he was doing that; according to you, "idinikit-dikit niya ang ari niya sa ari
mo;" what did you feel?
A. I was afraid and then, I cried.

Q. Will you tell the Court why you felt afraid and why you cried?

A. Because I was afraid he might insert his penis into my vagina.

Q. And, for how long did Congressman Jalosjos perform that act, which according to you,
"idinikit-dikit niya yong ari niya sa ari ko?"

COURT:

Place the Tagalog words, into the records.

A. Sandali lang po yon.

Q. What part of your vagina, or "ari" was being touched by the ari or penis?

xxx xxx xxx

Q. You said that you felt… I withdraw that question. How did you know that
Congressman Jalosjos was doing, "idinikit-dikit niya yung ari niya sa ari ko?"

A. Because I could feel it, sir.

Q. Now, you said you could feel it. What part of the vagina… in what part of your vagina
was Congressman Jalosjos, according to you, "idinikit-dikit niya yong ari niya sa ari mo?"

A. In front of my vagina, sir.

Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the
position of Congressman Jalosjos when he was doing that. "Idinikit-dikit niya sa ari ko?"

A. Ide-demonstrate ko po ba?

FISCAL ZUNO:

Q. Can you demonstrate?

xxx xxx xxx

A. He was holding me like this with his one hand; and was holding his penis while his
other hand, or his free hand was on the bed.

xxx xxx xxx

PROS. ZUNO:

Now, according to you, you don’t know how to say it; or what was done to you. Now,
will you tell the Court how can you describe what was done to you?
A. After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito."

Q. O.K. you said "itinutok niya ito;" what else did he do?

PROS. ZUNO:

She is now trying to describe.

COURT:

Translate.

A. He seems to be "parang idinidiin po niya."

Q. Now, what did you feel, when according to you; as I would quote: "parang idinidiin
niya?"

A. Masakit po.

Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?

COURT:

Q. Sabi mo itinutok. Nakita mo bang itinutok?

A. I saw him na nakaganuon po sa ano niya.

PROS. ZUNO:

Q. O.K., clarify. You said "nakaganuon siya" what do you mean by "nakaganuon siya?"

A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.

PROS. ZUNO:

Q. And, when you said "idinidiin po niya;" to which you are referring? What is this
"idinidiin niya?"

A. Idinidiin niya ang ari niya sa ari ko.

Q. And what did you feel when you said: he was "idinidiin niya ang ari niya sa ari ko?"

A. Masakit po.

COURT:

The answer is "masakit po."

Proceed.
 PROS. ZUNO:

Q. Where did you feel the pain?

A. Inside my ari po. (Sa loob po ng ari ko.)

xxx xxx xxx

PROS. ZUNO:

Q. And then, after that, what else did he do

A. After that, he touched my breast, sir.

Q. And, after touching your breast, what did he do?

A. And after that I felt that he was (witness demonstrating to the court, with her index
finger, rubbing against her open left palm)

Q. And after doing that, what else did he do?

A. After that, he instructed me to go to sleep.

xxx xxx xxx

A. I put down my clothes and then, I cried myself to sleep, sir.

Q. Why did you cry? Will you tell the court, why did you cried after putting down your
clothes?

A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.)

xxx xxx x x x.

(Emphasis supplied.)29

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy
visualization of the naïve and uninitiated to conclude that there was indeed penile invasion by
accused-appellant of Rosilyn’s labia. On that occasion, accused-appellant was similarly ensconced
between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and
elevated with a pillow on her back while accused-appellant was touching, poking and pressing his
penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the
resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape.

The pertinent portions of Rosilyn’s account of the July 20, 1996 incident is as follows:

PROS. ZUNO:

xxx xxx xxx

Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your
position?

INTERPRETER:

The witness is asking he (sic) she has to demonstrate?

FISCAL ZUNO:

Q. Ipaliwanag mo lang?

A. My back was rested on a pillow and my legs were spread apart.

Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your
back was rested on a pillow and your legs were spread wide apart, what else did he do?

A. He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari
ko."

Q. And what did you feel when he was doing that which according to you and I would
quote in Tagalog: "idinikit-dikit niya yong ari niya sa ari ko?"

A. I was afraid sir.

Q. And, after doing that: "idinikit-dikit niya yong ari niya sa ari ko," what else did he do?

A. After that, "itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko."

Q. You said: "Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin
niya yong ari niya sa ari ko;" Now, while he was doing that act, what was the position of
Congressman Jalosjos?

A. His two (2) hands were on my side and since my legs were spread apart; he was in-
between them, and doing an upward and downward movement.

(Witness demonstrated a pushing, or pumping movement)

Q. For how long did Congressman Jalosjos perform that act, pushing or pumping
movement while his penis, or "ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari
mo?"

A. I don’t know.

Q. And what did you feel when Congressman Jalosjos was making that movement,
pushing, or pumping?

A. I felt pain and then I cried.

Q. Where did you feel the pain?

 A. Inside my vagina, sir.

xxx xxx x x x.30

The child’s narration of the rape sequence is revealing. The act of "idinikit-dikit niya" was followed by
"itinutok niya xxx at idiniin-diin niya." The "idiniin-diin niya" was succeeded by "Masakit po." Pain
inside her "ari" is indicative of consummated penetration.

The environmental circumstances displayed by the graphic narration of what took place at the
appellant’s room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the
complainant’s testimony which shows that rape was legally consummated.

In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close
together --- which, although futile, somehow made it inconvenient, if not difficult, for the accused-
appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein
perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the
instant case from Campuhan. Here, the victim was passive and even submissive to the lecherous
acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of holding,
guiding and assisting his penis with his one hand, while touching, poking and pressing the same
against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the
pudendum and accused-appellant's sex organ.

Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual
assault at bar, the defense argued that it is highly improbable and contrary to human experience that
accused-appellant exercised a Spartan-like discipline and restrained himself from fully
consummating the sexual act when there was in fact no reason for him not to do so. In the same
light, the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant
contented himself with rubbing his penis clipped between her thighs until he reached orgasm and
desisted from fully penetrating her, when Rosilyn was then entirely at his disposal.

The defense seems to forget that there is no standard form of behavior when it comes to gratifying
one’s basic sexual instinct. The human sexual perversity is far too intricate for the defense to
prescribe certain forms of conduct. Even the word "perverse" is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who could even pass as one’s
granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating
and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others.
For all we know, accused-appellant may have found a distinct and complete sexual gratification in
such kind of libidinous stunts and maneuvers.

Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for
fear of perpetrating his name through a child from the womb of a minor; or because of his previous
agreement with his "suking bugaw," Simplicio Delantar, that there would be no penetration,
otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar
gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into
her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate
her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is,
after all, as the Solicitor General calls it, the peculiarity of prostitution.

The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs
and not in her vagina, only proves that there was no rape. It should be noted that this portion of
Rosilyn’s testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not
the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18
and July 20, 1996, the ejaculation on the victim’s thighs would not preclude the fact of rape.

There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-
appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn
unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even
if she did not actually see accused-appellant’s penis go inside her, surely she could have felt
whether it was his penis or just his finger.

We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time
the rape complained of occurred. To bolster the declaration of Rosilyn that she was then eleven
years old, the prosecution presented the following documents:

(1) Rosilyn’s birth certificate showing her birthday as May 11, 1985;31

(2) Rosilyn’s baptismal certificate showing her birthday as May 11, 1985;32

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to
Librada Telen as the mother;33

(4) Marked pages of the Cord Dressing Room Book;34

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her
parents’ (Librada Telen and Simplicio Delantar) patient file number (39-10-71);35

(6) Record of admission showing her parents’ patient number (39-10-71) and confinement at
the Jose Fabella Memorial Hospital from May 5-14, 1985.36

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of
her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of
Rosilyn should not have been considered by the trial court because said birth certificate has already
been ordered cancelled and expunged from the records by the Regional Trial Court of Manila,
Branch 38, in Special Proceedings No. 97-81893, dated April 11, 1997.37 However, it appears that
the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-
G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for
review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the
Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn
was indeed eleven years old at the time she was abused by accused-appellant.

However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof
of the complainant’s age in the records.

Rosilyn’s Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,38 we ruled
that the birth certificate, or in lieu thereof, any other documentary evidence that can help establish
the age of the victim, such as the baptismal certificate, school records, and documents of similar
nature, can be presented.

And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are
inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose
Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of
birth was May 11, 1985. These documents are considered entries in official records, admissible
as prima facie evidence of their contents and corroborative of Rosilyn’s testimony as to her age.

Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of his duty
by a public officer of the Philippines, or by a person in the performance of a duty especially
enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,39 the Court laid down the requisites for the application of
the foregoing rule, thus:

(a) That the entry was made by a public officer, or by another person specially enjoined by
law to do so;

(b) That it was made by the public officer in the performance of his duties or by such other
person in the performance of a duty specially enjoined by law; and

(c) That the public office or the other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.

In order for a book to classify as an official register and admissible in evidence, it is not necessary
that it be required by an express statute to be kept, nor that the nature of the office should render the
book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official
registers, though not required by law, kept as convenient and appropriate modes of discharging
official duties, are admissible.40

Entries in public or official books or records may be proved by the production of the books or records
themselves or by a copy certified by the legal keeper thereof.41 It is not necessary to show that the
person making the entry is unavailable by reason of death, absence, etc., in order that the entry may
be admissible in evidence, for his being excused from appearing in court in order that public
business be not deranged, is one of the reasons for this exception to the hearsay rule.42

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,43 mandates hospitals
to report and register with the local civil registrar the fact of birth, among others, of babies born under
their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00
or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the
discretion of the court, in case of failure to make the necessary report to the local civil registrar.

Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the
Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name of the
mother and other related entries are initially recorded, as well as the Master List of Live Births of the
hospital, are considered entries in official record, being indispensable to and appropriate modes of
recording the births of children preparatory to registration of said entries with the local civil registrar,
in compliance with a duty specifically mandated by law.

It matters not that the person presented to testify on these hospital records was not the person who
actually made those entries way back in 1985, but Amelita Avenante, the records custodian of the
hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or
by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made
those entries is not a requisite for their admissibility. What is important is that the entries testified to
by Avenante were gathered from the records of the hospital which were accomplished in compliance
with a duty specifically mandated by law.

Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are
admissible as evidence of the facts stated therein.

The preparation of these hospital documents preceded that of the birth and baptismal certificates of
Rosilyn. They establish independent and material facts prepared by unbiased and disinterested
persons under environmental circumstances apart from those that may have attended the
preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are
sufficient to support the testimony of Rosilyn as to her age.

Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn
are false and that he merely made them up, particularly her date of birth, was correctly disregarded
by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn against
him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified
in the present case, to get even with Rosilyn.

Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo
because the defense failed to prove that they were knowledgeable as to the circumstances of
Rosilyn’s birth. Their testimonies consist mainly of observations tending to show that Rosilyn’s
appearance belie her claim that she was born on May 11, 1985.

In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and
July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial
court acquitted accused-appellant on the ground of reasonable doubt as the defense was able to
prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the
lascivious acts were supposedly committed. The evidence of the defense established that accused-
appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.

In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly
committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she
felt somebody touching her private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted
in these cases on the ground of reasonable doubt.

With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22,
1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June
18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful
review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give
any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the
trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his
positive identification by Rosilyn as the culprit.

As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996,
accused-appellant claimed that it was impossible for him to have committed the same because he
flew to Dipolog on that day. The records disclose, however, that accused-appellant’s flight was at
9:40 a.m. The possibility, therefore, of accused-appellant’s having performed the lascivious acts on
the victim before he went off to the airport is not at all precluded. For his failure to prove the physical
impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when the sexual
abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for
money or profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be
children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be:Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; x x x . (Emphasis supplied.)

In People v. Optana,44 the Court, citing the case of People v. Larin,45 explained the elements of the
offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other sexual
abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child
indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under
RA 7610, children are "persons below eighteen years of age or those unable to fully take
care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of their age or mental disability or condition."

"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and
Regulation of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.

In the case at bar, accused-appellant’s acts of kissing Rosilyn on the lips, fondling her breast,
inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious
conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted
accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal
Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the
above-described lascivious acts.

The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is
below 12 years of age, is reclusion temporal in its medium period.

The records show that on at least nine (9) separate occasions, the accused-appellant inserted his
finger into the complainant’s vagina. These insertions took place in 1996. A year later, Congress
enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to read as follows:

Article 266-A. Rape; When and How Committed. – Rape is committed –

1. By a man who have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person’s mouth or
anal orifice or any instrument or object, into the genital or anal orifice of another person.
(Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the
crime as an offense against persons. Any public prosecutor, not necessarily the victim or her
parents, can prosecute the case.

The penalties for the crime of rape in the light of various circumstances, which are now set forth and
contained in Article 266-B of the Revised Penal Code, have also been increased.

Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly
imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty
(20) days of reclusion temporal, which is within the medium period of reclusion temporal medium,
pursuant to our ruling in Dulla v. Court of Appeals.46 Notwithstanding that R.A. 7610 is a special law,
accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the
range of the penalty next lower to that prescribed by the Code.47 However, the trial court erroneously
fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one
(1) day of prision mayor in its medium period. In the aforesaid case of Dulla,48we held that the
penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range
of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.
Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the
indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized
under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age consummates the
crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a
woman of tender age does not possess discernment and is incapable of giving intelligent consent to
the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she
is engaged in prostitution is still considered statutory rape. The application of force and intimidation
or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of
the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused
from liability.49

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had
carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only
eleven years of age at the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual advances of accused-
appellant, was of no moment. The fact that accused-appellant had sexual congress with eleven
year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.

As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for
each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from
P20,000.00 to P50,000.00.50On the other hand, the award of the amount of P50,000.00 as moral
damages for each count of statutory rape was correct.

In People v. Lor,51 citing the cases of People v. Victor,52 and People v. Gementiza,53 we held that the
indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the
amount authorized by the prevailing judicial policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory
upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages
which are based on different jural foundations and assessed by the court in the exercise of sound
judicial discretion.54 Hence, accused-appellant should be ordered to pay the offended party another
P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.

WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos.
96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of
two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each
count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch
62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding
accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is
AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each
count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day
ofreclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporalas maximum. Further, accused-appellant is ordered to pay the victim, Ma.
Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory
rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of
lasciviousness is increased to P50,000.00.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

SUPREME COURT
Manila

EN BANC

G.R. No. 167173 December 27, 2007

STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON MORRIS, SUNDARA

RAMESH, OWEN BELMAN, SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL
GONZALES, MA. ELLEN VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, RAMONA
BERNAD, MICHAELANGELO AGUILAR, and FERNAND TANSINGCO, Petitioners,
vs.
SENATE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, as
represented by its Chairperson, HON. EDGARDO J. ANGARA, Respondent.

DECISION

NACHURA, J.:

Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary Restraining Order
and/or Injunction) dated and filed on March 11, 2005 by petitioners against respondent Senate
Committee on Banks, Financial Institutions and Currencies, as represented by its Chairperson
Edgardo J. Angara (respondent).

Petitioner Standard Chartered Bank (SCB)-Philippines is an institution incorporated in England with

limited liability and is licensed to engage in banking, trust, and other related operations in the
Philippines. Petitioners Paul Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal,
Rajamani Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G. Reyes, Zenaida Iglesias,
Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco are the Chief Executive Officer,
Chief Operations Officer, Country Head of Consumer Banking, General Manager for Credit Card and
Personal Loans, Chief Financial Officer, Legal and Compliance Officer, former Trust and Investment
Services Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services, Head of
Client Relationships, and the Head of Global Markets of SCB-Philippines, respectively. Respondent,
on the other hand, is one of the permanent committees of the Senate of the Philippines.

The petition seeks the issuance of a temporary restraining order (TRO) to enjoin respondent from (1)
proceeding with its inquiry pursuant to Philippine Senate (P.S.) Resolution No. 166; (2) compelling
petitioners who are officers of petitioner SCB-Philippines to attend and testify before any further
hearing to be conducted by respondent, particularly that set on March 15, 2005; and (3) enforcing
any hold-departure order (HDO) and/or putting the petitioners on the Watch List. It also prays that
judgment be rendered (1) annulling the subpoenae ad testificandum and duces tecum issued to
petitioners, and (2) prohibiting the respondent from compelling petitioners to appear and testify in the
inquiry being conducted pursuant to P.S. Resolution No. 166.

The facts are as follows:

On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a
privilege speech entitled "Arrogance of Wealth"1 before the Senate based on a letter from Atty. Mark
R. Bocobo denouncing SCB-Philippines for selling unregistered foreign securities in violation of the
Securities Regulation Code (R.A. No. 8799) and urging the Senate to immediately conduct an
inquiry, in aid of legislation, to prevent the occurrence of a similar fraudulent activity in the future.
Upon motion of Senator Francis Pangilinan, the speech was referred to respondent. Prior to the
privilege speech, Senator Enrile had introduced P.S. Resolution No. 166,2 to wit:

RESOLUTION

DIRECTING THE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, TO

CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF
UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD CHARTERED BANK, WHICH
RESULTED IN BILLIONS OF PESOS OF LOSSES TO THE INVESTING PUBLIC

WHEREAS, Republic Act No. 7721, otherwise known as the "Law Liberalizing the Entry and Scope
of Operations of Foreign Banks in the Philippines," was approved on May 18, 1994 to promote
greater participation of foreign banks in the Philippine Banking Industry that will stimulate economic
growth and serve as a channel for the flow of funds into the economy;

WHEREAS, to promote greater competition in the Philippine Banking Industry, foreign banks were
accorded the same privileges, allowed to perform the same functions and subjected to the same
limitations under relevant banking laws imposed upon domestic banks;

WHEREAS, Standard Chartered Bank was among the foreign banks granted the privilege to do
business in our country under Republic Act No. 7721;

WHEREAS, there are complaints against Standard Chartered Bank whose actions have reportedly
defrauded hundreds of Filipino investors of billions of pesos through the sale of unregistered
securities in the form of high-risk mutual funds falsely advertised and marketed as safe investment
havens;

WHEREAS, there are reports that Standard Chartered Bank clearly knew that its actions were
violative of Philippine banking and securities laws but cleverly disguised its illegal acts through the
use of pro-forma agreements containing waivers of liability in favor of the bank;

WHEREAS, there are reports that in the early stages of conducting these questionable activities, the
Bangko Sentral ng Pilipinas warned and eventually fined Standard Chartered Bank a measly
₱30,000 for violating Philippine banking laws;
WHEREAS, the particular operations of Standard Chartered Bank may constitute "conducting
business in an unsafe and unsound manner," punishable under Section 37 of Republic Act No. 7653
and should have drawn the higher penalty of revocation of its quasi-banking license;

WHEREAS, Republic Act No. 8791 or the "General Banking Act of 2000" deems a particular act or
omission as conducting business in an unsafe and unsound manner as follows:

"Section 56.2 The act or omission has resulted or may result in material loss or damage or abnormal
risk to the institution's depositors, creditors, investors, stockholders or to the Bangko Sentral or to the
public in general."

WHEREAS, the sale of unregistered securities is also a clear violation of Republic Act No. 8799 or
"The Securities Regulation Code of 2000" which states:

"Section 8.1 Securities shall not be sold or offered for sale or distribution within the Philippines,
without a registration statement duly filed with and approved by the Commission. Prior to such sale,
information on the securities, in such form and with such substance as the Commission may
prescribe, shall be made available to each prospective purchaser."

WHEREAS, the Securities and Exchange Commission (SEC) reportedly issued a Cease-and-Desist
Order (CDO) against Standard Chartered Bank for the sale of these unregistered securities but the
case was reportedly settled administratively and dismissed after Standard Chartered Bank paid a
fine of ₱7 Million;

WHEREAS, the SEC reportedly made an official finding that Standard Chartered Bank actively
engaged in promoting and marketing the so-called "Global Third Party Mutual Funds" to the
investing public and even set revenue quotas for the sale of these funds;

WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and in effectively enforcing the registration rules
intended to protect the investing public from fraudulent practices;

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in a manner that would protect the investing public;

WHEREAS, there is a need for remedial legislation to address the situation, having in mind the
imposition of proportionate penalties to offending entities and their directors, officers and
representatives among other additional regulatory measures;

Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to direct the Committee on

Banks, Currencies, and Financial Institutions, to conduct an inquiry, in aid of legislation, into the
reported sale of unregistered and high-risk securities by Standard Chartered Bank which resulted in
billions of losses to the investing public.

Acting on the referral, respondent, through its Chairperson, Senator Edgardo J. Angara, set the
initial hearing on February 28, 2005 to investigate, in aid of legislation, the subject matter of the
speech and resolution filed by Senator Enrile.

Respondent invited petitioners, among others, to attend the hearing, requesting them to submit their
written position paper. Petitioners, through counsel, submitted to respondent a letter3 dated February
24, 2005 presenting their position, particularly stressing that there were cases pending in court
allegedly involving the same issues subject of the legislative inquiry, thereby posing a challenge to
the jurisdiction of respondent to continue with the inquiry.

On February 28, 2005, respondent commenced the investigation. Senator Enrile inquired who
among those invited as resource persons were present and who were absent. Thereafter, Senator
Enrile moved that subpoenae be issued to those who did not attend the hearing and that the Senate
request the Department of Justice, through the Bureau of Immigration and Deportation, to issue an
HDO against them and/or include them in the Bureau’s Watch List. Senator Juan Flavier seconded
the motion and the motion was approved.

Respondent then proceeded with the investigation proper. Towards the end of the hearing,
petitioners, through counsel, made an Opening Statement4 that brought to the attention of
respondent the lack of proper authorization from affected clients for the bank to make disclosures of
their accounts and the lack of copies of the accusing documents mentioned in Senator Enrile's
privilege speech, and reiterated that there were pending court cases regarding the alleged sale in
the Philippines by SCB-Philippines of unregistered foreign securities.

The February 28, 2005 hearing was adjourned without the setting of the next hearing date. However,
petitioners were later served by respondent with subpoenae ad testificandum and duces tecum to
compel them to attend and testify at the hearing set on March 15, 2005. Hence, this petition.

The grounds relied upon by petitioners are as follows:

I.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING AN INVESTIGATION,
PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING INTO THE ISSUE OF
WHETHER THE STANDARD CHARTERED BANK HAD SOLD UNREGISTERED FOREIGN
SECURITIES IN THE PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT OF CRIMINAL
AND CIVIL ACTIONS NOW PENDING BEFORE THE COURT OF APPEALS, REGIONAL TRIAL
COURT OF PASIG CITY, METROPOLITAN TRIAL COURT OF MAKATI CITY AND THE
PROSECUTOR'S OFFICE OF MAKATI CITY.

II.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION BY CONDUCTING AN INVESTIGATION, PURPORTEDLY "IN AID OF
LEGISLATION," BUT IN REALITY IN "AID OF COLLECTION" BY A HANDFUL OF TWO (2)
CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR
ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS WITHIN THE PROVINCE OF THE
COURT RATHER THAN OF THE LEGISLATURE.

III.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN COMPELLING PETITIONERS,
SOME OF WHOM ARE RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL ACTIONS
BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS’ RIGHT AGAINST SELF-
INCRIMINATION AND RIGHT TO PURSUE AND DEFEND THEIR CAUSE IN COURT RATHER
THAN ENGAGE IN TRIAL BY PUBLICITY – A CLEAR VIOLATION OF DUE PROCESS, RIGHT TO
PRIVACY AND TO TRAVEL.
 IV.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION BY DISREGARDING ITS OWN RULES.5

Petitioners argue that respondent has no jurisdiction to conduct the inquiry because its subject
matter is the very same subject matter of the following cases, to wit:

(a) CA-G.R. SP No. 85078, entitled "Manuel V. Baviera vs. Hon. Esperanza P. Rosario, et
al., pending before the 9th Division of the Court of Appeals. In the petition, Mr. Baviera seeks
to annul and set aside the dismissal by the Department of Justice of his complaint against
Standard Chartered Bank and its officers accusing them of SELLING UNREGISTERED
FOREIGN SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED ESTAFA) AND
ARTICLE 315 OF THE REVISED PENAL CODE.

(b) CA-G.R. SP No. 86200, entitled "Manuel V. Baviera vs. Hon. Rafael Buenaventura, et
al.", pending before the 15th Division of the Court of Appeals. In the petition, Mr. Baviera
seeks to annul and set aside the termination for lack of probable cause by the Anti-Money
Laundering Council ("AMLC") of the investigation of Standard Chartered Bank for money
laundering activities BY SELLING UNREGISTERED FOREIGN SECURITIES.

(c) CA-G.R. SP No. 87328, entitled "Manuel V. Baviera vs. Hon. Esperanza Paglinawan
Rozario, et al.,"pending before the 16th Division of the Court of Appeals. The petition seeks
to annul and set aside the dismissal by the Department of Justice of Mr. Baviera's complaint
accusing SCB and its officers of violation of the Securities Regulation Code by SELLING
UNREGISTERED FOREIGN SECURITIES.

(d) Civil Case No. 70173, entitled "Mr. Noel G. Sanchez, et al. vs. Standard Chartered
Bank," pending before Branch 155 of the Regional Trial Court of Pasig City. Plaintiff seeks
damages and recovery of their investment accusing the bank of SELLING UNREGISTERED
FOREIGN SECURITIES.

(e) Criminal Case No. 332034, entitled "People of the Philippines vs. Manuel V.
Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioner
Morris is the private complainant in this information for extortion or blackmail against Mr.
Baviera for demanding the payment of US$2 Million with the threat to EXPOSE THE
BANK'S "LARGE SCALE SCAM" CONSISTING [OF] ILLEGAL SELLING OF
UNREGISTERED FOREIGN SECURITIES BY THE BANK, before various government
offices, such as the Department of Justice, the BIR, Bangko Sentral ng Pilipinas, Regional
Trial Courts, and both houses of Congress.

(f) Criminal Case No. 331395, entitled "People of the Philippines vs. Manuel V.
Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioners
Victor and Chona Reyes are the private complainants in this information for perjury
committed by Mr. Baviera in securing a hold departure order against the petitioners herein
from the Department of Justice for their alleged involvement in syndicated estafa and
swindling BY SELLING UNREGISTERED FOREIGN SECURITIES.

(g) I.S. No. 2004-B-2279-80, entitled "Aurelio Litonjua III and Aurelio Litonjua, Jr. vs.
Antonette de los Reyes, et al.," pending before the Office of the Prosecutor, Makati City. This
is a criminal complaint accusing SCB and its officers of estafa for SELLING
UNREGISTERED FOREIGN SECURITIES.6
Citing Bengzon, Jr. v. Senate Blue Ribbon Committee,7 the petitioners claim that since the issue of
whether or not SCB-Philippines illegally sold unregistered foreign securities is already preempted by
the courts that took cognizance of the foregoing cases, the respondent, by this investigation, would
encroach upon the judicial powers vested solely in these courts.

The argument is misplaced. Bengzon does not apply squarely to petitioners’ case.

It is true that in Bengzon, the Court declared that the issue to be investigated was one over which
jurisdiction had already been acquired by the Sandiganbayan, and to allow the [Senate Blue Ribbon]
Committee to investigate the matter would create the possibility of conflicting judgments; and that
the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain
of judicial jurisdiction that had set in much earlier.

To the extent that, in the case at bench, there are a number of cases already pending in various
courts and administrative bodies involving the petitioners, relative to the alleged sale of unregistered
foreign securities, there is a resemblance between this case and Bengzon. However, the similarity
ends there.

Central to the Court’s ruling in Bengzon -- that the Senate Blue Ribbon Committee was without any
constitutional mooring to conduct the legislative investigation -- was the Court’s determination that
the intended inquiry was not in aid of legislation. The Court found that the speech of Senator Enrile,
which sought such investigation contained no suggestion of any contemplated legislation; it merely
called upon the Senate to look into possible violations of Section 5, Republic Act No. 3019. Thus, the
Court held that the requested probe failed to comply with a fundamental requirement of Section 21,
Article VI of the Constitution, which states:

The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.

Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding with the legislative
investigation in that case.

Unfortunately for the petitioners, this distinguishing factual milieu in Bengzon does not obtain in the
instant case. P.S. Resolution No. 166 is explicit on the subject and nature of the inquiry to be (and
already being) conducted by the respondent Committee, as found in the last three Whereas clauses
thereof, viz.:

WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and in effectively enforcing the registration rules
intended to protect the investing public from fraudulent practices;

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in a manner that would protect the investing public;

WHEREAS, there is a need for remedial legislation to address the situation, having in mind the
imposition of proportionate penalties to offending entities and their directors, officers and
representatives among other additional regulatory measures; (emphasis supplied)

The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error
in petitioners’ allegation that the inquiry, as initiated in a privilege speech by the very same Senator
Enrile, was simply "to denounce the illegal practice committed by a foreign bank in selling
unregistered foreign securities x x x." This fallacy is made more glaring when we consider that, at the
conclusion of his privilege speech, Senator Enrile urged the Senate "to immediately conduct an
inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent activity in the
future."

Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial
body should not automatically bar the conduct of legislative investigation. Otherwise, it would be
extremely easy to subvert any intended inquiry by Congress through the convenient ploy of
instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative
authority, of which the power of legislative inquiry is an essential component, cannot be made
subordinate to a criminal or an administrative investigation.

As succinctly stated in the landmark case Arnault v. Nazareno8 –

[T]he power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite information – which is not infrequently true –
recourse must be had to others who possess it.

Neither can the petitioners claim that they were singled out by the respondent Committee. The Court
notes that among those invited as resource persons were officials of the Securities and Exchange
Commission (SEC) and the Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the
same critical scrutiny by the respondent relative to their separate findings on the illegal sale of
unregistered foreign securities by SCB-Philippines. It is obvious that the objective of the investigation
was the quest for remedies, in terms of legislation, to prevent the recurrence of the allegedly
fraudulent activity.

Still, petitioners insist that the inquiry conducted by respondent was, in fact, "in aid of collection."
They claim that Atty. Bocobo and Manuel Baviera, the latter a party to the pending court cases cited
by petitioners, were only seeking a friendly forum so that they could recover their investments from
SCB-Philippines; and that the respondent has allowed itself to be used as the conveniently available
vehicle to effect this purpose.

However, as correctly pointed out by respondent in its Comment on the petition, Atty. Bocobo did not
file a complaint before the Senate for the purpose of recovering his investment. On the contrary, and
as confirmed during the initial hearing on February 28, 2005, his letter-complaint humbly requested
the Senate to conduct an inquiry into the purportedly illegal activities of SCB-Philippines, with the
end view of preventing the future occurrence of any similar fraudulent activity by the banks in
general.9 Baviera, on the other hand, was not a "complainant" but merely a witness in the
investigation, invited to testify on the alleged illegal sale of unregistered foreign securities by SCB-
Philippines, being one of the supposed victims thereof.

The Court further notes that when it denied petitioners’ prayer for the issuance of a TRO to restrain
the hearing set on March 15, 2005,10 respondent proceeded with the investigation. On the said date,
outraged by petitioners’ imputation that it was conducting the investigation "in aid of collection,"
respondent held petitioners, together with their counsel, Atty. Reynaldo Geronimo, in contempt and
ordered their detention for six hours.

Petitioners filed a Motion for Partial Reconsideration of this Court’s Resolution dated March 14, 2005
only with respect to the denial of the prayer for the issuance of a TRO and/or writ of preliminary
injunction, alleging that their being held in contempt was without legal basis, as the phrase "in aid of
collection" partakes of an absolutely privileged allegation in the petition.

We do not agree. The Court has already expounded on the essence of the contempt power of
Congress and its committees in this wise –

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power must be considered implied or incidental to the
exercise of legislative power. How could a legislative body obtain the knowledge and information on
which to base intended legislation if it cannot require and compel the disclosure of such knowledge
and information, if it is impotent to punish a defiance of its power and authority? When the framers of
the Constitution adopted the principle of separation of powers, making each branch supreme within
the realm of its respective authority, it must have intended each department’s authority to be full and
complete, independently of each other’s authority or power. And how could the authority and power
become complete if for every act of refusal, every act of defiance, every act of contumacy against it,
the legislative body must resort to the judicial department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with affronts committed against its authority or dignity.11

The exercise by Congress or by any of its committees of the power to punish contempt is based on
the principle of self-preservation. As the branch of the government vested with the legislative power,
independently of the judicial branch, it can assert its authority and punish contumacious acts against
it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to
the sovereign character of the legislature as one of the three independent and coordinate branches
of government.12

In this case, petitioners’ imputation that the investigation was "in aid of collection" is a direct
challenge against the authority of the Senate Committee, as it ascribes ill motive to the latter. In this
light, we find the contempt citation against the petitioners reasonable and justified.

Furthermore, it is axiomatic that the power of legislative investigation includes the power to compel
the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the
power to ensure that said witnesses would be available to testify in the legislative investigation. In
the case at bench, considering that most of the officers of SCB-Philippines are not Filipino nationals
who may easily evade the compulsive character of respondent’s summons by leaving the country, it
was reasonable for the respondent to request the assistance of the Bureau of Immigration and
Deportation to prevent said witnesses from evading the inquiry and defeating its purpose. In any
event, no HDO was issued by a court. The BID instead included them only in the Watch List, which
had the effect of merely delaying petitioners’ intended travel abroad for five (5) days, provided no
HDO is issued against them.13

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state
that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution,
guarantees respect for the rights of persons affected by the legislative investigation, not every
invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In
Sabio v. Gordon,14 we have held that the right of the people to access information on matters of
public concern generally prevails over the right to privacy of ordinary financial transactions. In that
case, we declared that the right to privacy is not absolute where there is an overriding compelling
state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc,15 there
is no infringement of the individual’s right to privacy as the requirement to disclosure information is
for a valid purpose, in this case, to ensure that the government agencies involved in regulating
banking transactions adequately protect the public who invest in foreign securities. Suffice it to state
that this purpose constitutes a reason compelling enough to proceed with the assailed legislative
investigation.16

As regards the issue of self-incrimination, the petitioners, officers of SCB-Philippines, are not being
indicted as accused in a criminal proceeding. They were summoned by respondent merely as
resource persons, or as witnesses, in a legislative inquiry. As distinguished by this Court –

[An] accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary
witness may be compelled to take the witness stand and claim the privilege as each question
requiring an incriminating answer is shot at him, an accused may altogether refuse to take the
witness stand and refuse to answer any and all questions.17

Concededly, this right of the accused against self-incrimination is extended to respondents in

administrative investigations that partake of the nature of or are analogous to criminal proceedings.
The privilege has consistently been held to extend to all proceedings sanctioned by law; and to all
cases in which punishment is sought to be visited upon a witness, whether a party or not.18

However, in this case, petitioners neither stand as accused in a criminal case nor will they be
subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot
altogether decline appearing before respondent, although they may invoke the privilege when a
question calling for an incriminating answer is propounded.19

Petitioners’ argument, that the investigation before respondent may result in a recommendation for
their prosecution by the appropriate government agencies, such as the Department of Justice or the
Office of the Ombudsman, does not persuade.

As held in Sinclair v. United States20 --

It may be conceded that Congress is without authority to compel disclosures for the purpose of
aiding the prosecution of pending suits; but the authority of that body, directly or through its
Committees, to require pertinent disclosures in aid of its own constitutional power is not abridged
because the information sought to be elicited may also be of use in such suits. x x x It is plain that
investigation of the matters involved in suits brought or to be commenced under the Senate
resolution directing the institution of suits for the cancellation of the leases might directly aid in
respect of legislative action.

The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the
punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand,
is to arrive at a policy determination, which may or may not be enacted into law.

Except only when it exercises the power to punish for contempt, the respondent, as with the other
Committees of the Senate or of the House of Representatives, cannot penalize violators even if
there is overwhelming evidence of criminal culpability. Other than proposing or initiating amendatory
or remedial legislation, respondent can only recommend measures to address or remedy whatever
irregularities may be unearthed during the investigation, although it may include in its Report a
recommendation for the criminal indictment of persons who may appear liable. At best, the
recommendation, along with the evidence, contained in such a Report would be persuasive, but it is
still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.

Finally, petitioners sought anew, in their Manifestation and Motion21 dated June 21, 2006, the
issuance by this Court of a TRO and/or writ of preliminary injunction to prevent respondent from
submitting its Committee Report No. 75 to the Senate in plenary for approval. However, 16 days
prior to the filing of the Manifestation and Motion, or on June 5, 2006, respondent had already
submitted the report to the Senate in plenary. While there is no showing that the said report has
been approved by the Senate, the subject of the Manifestation and Motion has inescapably become
moot and academic.

WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The Manifestation and Motion
dated June 21, 2006 is, likewise, DENIED for being moot and academic.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

On leave
CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING
Associate Justice
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. RUBEN T. REYES

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice
 G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as

Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in
his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines,Respondents.

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE
DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.

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

G.R. No. 169667 April 20, 2006

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

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES,Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history
of republican thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the government that
contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including
those employed in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations 2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M.
Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon – Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and opportunity
to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable
to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well
as notices to all resource persons were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and
For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article

VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.
When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the
public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are covered
by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other
officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by
the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated
in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either
House of Congress to ensure the observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public officials appearing in inquiries in
aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval from the President"
and "that no approval has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security scheduled [on] 28
September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government
officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464
infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule
of law, and their rights to information and to transparent governance are threatened by the
imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement since it directly interferes with
and impedes the valid exercise of the Senate’s powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No.
169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented through its members in Congress, particularly in
the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled
on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that
"[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary
Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department
of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to
attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.

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

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec.
28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1,
and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that
calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

 Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Court’s power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660
and 169667 make it clear that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin42 and
Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing
on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens,
and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of power among the three
branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Laban’s alleged interest as a political party does not suffice to
clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited
by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail
project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These
officials, they claim, merely communicated to the Senate that they have not yet secured the consent
of the President, not that the President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution
which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in
the latter, it vests the power of inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a
case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry
is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senate’s power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite information –
which is not infrequently true – recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a
proper subject of investigation are one. It follows that the operation of government, being a legitimate
subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public
funds of which Congress is the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s
certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President
and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or
the privilege of the Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and diplomatic secrets but
also to documents integral to an appropriate exercise of the executive’ domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural
setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In
issue in that case was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents relating
to the Watergate investigations. The claim of privilege was based on the President’s general interest
in the confidentiality of his conversations and correspondence. The U.S. Court held that while there
is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a President’s powers. The Court,
nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful
to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washington’s refusal to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
President’s privilege over his conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that
there is a "governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does
not extend to matters recognized as "privileged information under the separation of powers,"82 by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on the department heads’
possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at all. Rather,
the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution
on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa – as the Gentleman
himself has experienced in the interim Batasang Pambansa – one of the most competent inputs that
we can put in our committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when
requested under Section 22] does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid
of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents
of the amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized. |avv phi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms
of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of
Cabinet would be very, very essential not only in the application of check and balance but also, in
effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question hour. Commissioner
Davide’s only concern was that the two provisions on these distinct powers be placed closely
together, they being complementary to each other. Neither Commissioner considered them as
identical functions of Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange,
Commissioner Maambong’s committee – the Committee on Style – shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government,85 corresponding to what is
known in Britain as the question period. There was a specific provision for a question hour in the
1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of

the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress’ right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress as the elected
representatives of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution such as the
British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the President
to whom, as Chief Executive, such department heads must give a report of their performance as a
matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power — the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on her being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of

legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is evident that
under the rule of ejusdem generis, the determination by the President under this provision is
intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and that
the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able
to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have
not secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed
implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim of
privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as privileged even against Congress. Thus, the
case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation.
In stating its objection to claimant’s interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown – nor even alleged – that those who evaluated
claimant’s product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and
underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
‘precise and certain’ reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of
the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made
by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination
as to its applicability. To recognize such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside scrutiny, would make a farce of the
whole procedure.101(Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate
reasons for failing to produce the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to
obtain the records. ‘To deny the Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee. To
sustain the privilege, it need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It
is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the possible need for invoking the privilege. This
is necessary in order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power of inquiry, but the right
of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither
does the right to information grant a citizen the power to exact testimony from government officials.
These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information
which they can use in formulating their own opinions on the matter before Congress — opinions
which they can then communicate to their representatives and other government officials through the
various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the people’s will. Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore,
in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring
supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:
 ARTEMIO V. PANGANIBAN
Chief Justice

(ON LEAVE)
REYNATO S. PUNO CONSUELO YNARES- SANTIAGO
Associate Justice Asscociate Justice

LEONARDO A. QUISUMBING ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Resolution were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

G.R. No. 170165 August 15, 2006

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C.
ROA AS THE PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST
MARSHALL GENERAL GARCIA, and OF THE ARMED FORCES OF THE PHILIPPINES AND
THE GENERAL COURT-MARTIAL, Respondents.
 DECISION

TINGA, J.:

A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of
their superior officers are exempt

from the strictures of military law and discipline if such defiance is predicated on an act otherwise
valid under civilian law. Obedience and deference to the military chain of command and the
President as commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers are content-
neutral, beyond the sway of the officer’s own sense of what is prudent or rash, or more elementally,
of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the "ills"
of participatory democracy.

Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining
them and other military officers from testifying before Congress without the President’s consent.
Petitioners also pray for injunctive relief against a pending preliminary investigation against them, in
preparation for possible court-martial proceedings, initiated within the military justice system in
connection with petitioners’ violation of the aforementioned directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be

addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very
well been presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may
be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of
Staff.

The solicited writs of certiorari and prohibition do not avail; the petition must be denied.

I.

The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander
Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio
City, the former as the PMA Assistant Superintendent, and the latter as the Assistant Commandant
of Cadets.2

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the
AFP to appear at a public hearing before the Senate Committee on National Defense and Security
(Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the Commission on
Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the
time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a
member, of "Joint Task Force Ranao" by the AFP Southern Command. "Joint Task Force Ranao"
was tasked with the maintenance of peace and order during the 2004 elections in the provinces of
Lanao del Norte and Lanao del Sur.3 `

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter
to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment in
Brunei, but he nonetheless "directed other officers from the AFP who were invited to attend the
hearing."4

On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed
to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed
the two officers to attend the hearing.6Conformably, Gen. Gudani and Col. Balutan filed their
respective requests for travel authority addressed to the PMA Superintendent.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of
the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to
attend said hearing, and that some of the invited officers also could not attend as they were
"attending to other urgent operational matters." By this time, both Gen. Gudani and Col. Balutan had
already departed Baguio for Manila to attend the hearing.

Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to
the PMA Superintendent from the office of Gen. Senga, stating as follows:

PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL

APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER
BALUTAN PA (GSC) ACCORDINGLY.7

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator
that "no approval has been granted by the President to any AFP officer to appear" before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as
the hearing started, and they both testified as to the conduct of the 2004 elections.

The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG
manifests that the couriers of the AFP Command Center had attempted to deliver the radio message
to Gen. Gudani’s residence in a subdivision in Parañaque City late in the night of 27 September
2005, but they were not permitted entry by the subdivision guards. The next day, 28 September
2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent
earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga
called Commodore Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani, but Gen.
Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani
that "it was an order," yet Gen. Gudani still refused to take Gen. Senga’s call.8

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen.
Senga issued a statement which noted that the two had appeared before the Senate Committee "in
spite of the fact that a guidance has been given that a Presidential approval should be sought prior
to such an appearance;" that such directive was "in keeping with the time[-]honored principle of the
Chain of Command;" and that the two officers "disobeyed a legal order, in violation of A[rticles of]
W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court
Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.9

On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive
department including the military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said executive order
in Senate v. Ermita.11 The relevance of E.O. 464 andSenate to the present petition shall be
discussed forthwith.

In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col.
Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost
Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col.
Galarpe, both petitioners invoked their right to remain silent.12 The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.13

In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline.14 As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial
by the General Court Martial (GCM).15 Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert
Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to
appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles
6516 and 9717 of Commonwealth Act No. 408,18 and to submit their counter-affidavits and affidavits of
witnesses at the Office of the Judge Advocate General.19 The Orders were accompanied by
respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97.

It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be declared unconstitutional;
(2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga,
Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or
orders, be permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.20

Petitioners characterize the directive from President Arroyo requiring her prior approval before any
AFP personnel appear before Congress as a "gag order," which violates the principle of separation
of powers in government as it interferes with the investigation of the Senate Committee conducted in
aid of legislation. They also equate the "gag order" with culpable violation of the Constitution,
particularly in relation to the public’s constitutional right to information and transparency in matters of
public concern. Plaintively, petitioners claim that "the Filipino people have every right to hear the
[petitioners’] testimonies," and even if the "gag order" were unconstitutional, it still was tantamount to
"the crime of obstruction of justice." Petitioners further argue that there was no law prohibiting them
from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of
Congress to conduct inquiries in aid of legislation.

Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as "all officers and soldiers in the active
service" of the AFP.

II.

We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially
considering that per records, petitioners have not yet been subjected to court martial proceedings.
Owing to the absence of such proceedings, the correct inquiry should be limited to whether
respondents could properly initiate such proceedings preparatory to a formal court-martial, such as
the aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding their
testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that
it is not a trier of facts at first instance,21 is averse to making any authoritative findings of fact, for that
function is first for the court-martial court to fulfill.

Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced "per instruction" from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit before
this Court that they had learned of such order prior to their testimony, although the OSG asserts that
at the very least, Gen. Gudani already knew of such order before he testified.22 Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this petition,
which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.

What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle23 that AFP personnel of whatever rank
are liable under military law for violating a direct order of an officer superior in rank. Whether
petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume,
for the purposes of this petition, that petitioners did so.

III.

Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the present
petition.Notably, it is not alleged that petitioners were in any way called to task for violating
E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga not to
appear before the Senate Committee, an order that stands independent of the executive
order. Distinctions are called for, since Section 2(b) of E.O. 464 listed "generals and flag officers of
the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege," as among those public officials required in Section 3 of E.O.
464 "to secure prior consent of the President prior to appearing before either House of Congress."
The Court in Senate declared both Section 2(b) and Section 3 void,24 and the impression may have
been left following Senate that it settled as doctrine, that the President is prohibited from requiring
military personnel from attending congressional hearings without having first secured prior
presidential consent. That impression is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered
by significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes
into consideration.25 However, the ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and independent specie of
presidential authority—the commander-in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the President are not encumbered by the same
degree of restriction as that which may attach to executive privilege or executive control.

During the deliberations in Senate, the Court was very well aware of the pendency of this petition as
well as the issues raised herein. The decision in Senate was rendered with the comfort that the
nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the Court was then
cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the
aegis of the commander-in-chief powers26 to require military officials from securing prior consent
before appearing before Congress. The pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-martial,
considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No.
408, which defines persons subject to military law as, among others, "all officers and soldiers in the
active service of the [AFP]," and points out that he is no longer in the active service.

This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 where the Court
declared that an officer whose name was dropped from the roll of officers cannot be considered to
be outside the jurisdiction of military authorities when military justice proceedings were initiated
against him before the termination of his service. Once jurisdiction has been acquired over the
officer, it continues until his case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.28

Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:

We have gone through the treatise of Colonel Winthrop and We find the following passage which
goes against the contention of the petitioners, viz —

3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a
discharge is complete, proceedings with a view to trial are commenced against him — as by
arrest or the service of charges, — the military jurisdiction will fully attach and once attached
may be continued by a trial by court-martial ordered and held after the end of the term of the
enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4
October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried
in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War x x
x"30 To this citation, petitioners do not offer any response, and in fact have excluded the matter of
Gen. Gudani’s retirement as an issue in their subsequent memorandum.

IV.

We now turn to the central issues.

Petitioners wish to see annulled the "gag order" that required them to secure presidential consent
prior to their appearance before the Senate, claiming that it violates the constitutional right to
information and transparency in matters of public concern; or if not, is tantamount at least to the
criminal acts of obstruction of justice and grave coercion. However, the proper perspective from
which to consider this issue entails the examination of the basis and authority of the President to
issue such an order in the first place to members of the AFP and the determination of whether such
an order is subject to any limitations.

The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most
crucial to the democratic way of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The Constitution reposes final authority, control
and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and
whose duties as commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature.31 Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil courts, on
matters such as conducting warrantless searches and seizures.32

Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power
to declare the existence of a state of war.33Congress is also empowered to revoke a proclamation of
martial law or the suspension of the writ of habeas corpus.34 The approval of the Commission on
Appointments is also required before the President can promote military officers from the rank of
colonel or naval captain.35 Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile
in meaning and

implication as to whatever inherent martial authority the President may possess.36

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII,
which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all
armed forces of the Philippines x x x"37 Outside explicit constitutional limitations, such as those found
in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-
chief, absolute authority over the persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law.

Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered
confined under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan
was also ordered, as a condition for his house arrest, that he may not issue any press statements or
give any press conference during his period of detention. The Court unanimously upheld such
restrictions, noting:

[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of
speech, may be circumscribed by rules of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the military in fulfilling its
duties under the law depends to a large extent on the maintenance of discipline within its
ranks. Hence, lawful orders must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint
that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.39

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant
concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.

It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces is
as protector of the people and of the State.40 Towards this end, the military must insist upon a
respect for duty and a discipline without counterpart in civilian life.41 The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies as
powerful now as in the past.42 In the end, it must be borne in mind that the armed forces has a
distinct subculture with unique needs, a specialized society separate from civilian society. 43 In the
elegant prose of the eminent British military historian, John Keegan:

[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats.
They are those of a world apart, a very ancient world, which exists in parallel with the everyday world
but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the
civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the
warrior can never be that of civilization itself….44

Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War.45 "An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For
there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers
deployed in the field], on a distant service, were permitted to act upon their own opinion of their
rights [or their opinion of the

President’s intent], and to throw off the authority of the commander whenever they supposed it to
be unlawfully exercised."46

Further traditional restrictions on members of the armed forces are those imposed on free speech
and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior
1âwphi1

officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal
regard if at all to the reason for such restraint. It is integral to military discipline that the soldier’s
speech be with the consent and approval of the military commander.

The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that "[t]he armed forces shall
be insulated from partisan politics," and that ‘[n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote."47 Certainly, no constitutional provision or
military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital
that such opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military discipline to
foment an atmosphere that promotes an active dislike of or dissent against the President, the
commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President
they may dislike or distrust. This fundamental principle averts the country from going the way of
banana republics.

Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked
by regime changes wherein active military dissent from the chain of command formed a key, though
not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms
on a politicized military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view cannot be affirmed by the
legal order. The evolutionary path of our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At the same time, evolution mandates a
similar demand that our system of governance be more responsive to the needs and aspirations of
the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an
undue influence in our polity.

Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
necessary restriction on members of the military. A soldier cannot leave his/her post without the
consent of the commanding officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be able to appropriately
respond to any exigencies. For the same reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being
denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again,
military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of
duty or absents from his/her command, guard, quarters, station, or camp without proper leave is
subject to punishment by court-martial.48 It is even clear from the record that petitioners had actually
requested for travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing.49 Even petitioners are well aware that it was necessary for them to obtain permission from
their superiors before they could travel to Manila to attend the Senate Hearing.

It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners’ position is affirmed, a considerable exception would be carved from the unimpeachable
right of military officers to restrict the speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline simply cannot warrant the
Court’s imprimatur on petitioner’s position.

V.

Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they were
responding to an invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately came from the President,
the head of the executive branch of government and the commander-in-chief of the armed forces.

Thus, we have to consider the question: may the President prevent a member of the armed forces
from testifying before a legislative inquiry? We hold that the President has constitutional authority to
do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer
who defies such injunction is liable under military justice. At the same time, we also hold that any
chamber of Congress which seeks the appearance before it of a military officer against the consent
of the President has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the land which the
President has the duty to faithfully execute.50

Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In
doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that
the privilege must be formally invoked on specified grounds. However, the ability of the President
to prevent military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control the actions
and speech of members of the armed forces. The President’s prerogatives as commander-in-
chief are not hampered by the same limitations as in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the approval
of higher-rank promotions,51 yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to
control the individual members of the armed forces be accorded the utmost respect. Where a military
officer is torn between obeying the President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.52

At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s
functions is the conduct of inquiries in aid of legislation.53 Inasmuch as it is ill-advised for Congress to
interfere with the President’s power as commander-in-chief, it is similarly detrimental for the
President to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did
not come to pass in this petition, since petitioners testified anyway despite the presidential
prohibition. Yet the Court is aware that with its pronouncement today that the President has the right
to require prior consent from members of the armed forces, the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by which members
of the military may be compelled to attend legislative inquiries even if the President desires
otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-
chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the legislative
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so.
There is considerable interplay between the legislative and executive branches, informed by due
deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this
relationship; hence, it is only as a last resort that one branch seeks to compel the other to a
particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy
a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on
judicial power due to its inability to originate national policies and legislation, such is balanced by the
fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.

As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among
others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.56 Arnaultrecognized that the legislative power of inquiry and the process to enforce it, "is an
essential and appropriate auxiliary to the legislative function."57 On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid
of legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI
of the Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon Committee
from requiring the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended legislation.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.

As evidenced by the American experience during the so-called "McCarthy era", however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s
certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly
be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not
usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as
occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person
for that matter, the possible needed statute which prompted the need for the inquiry. Given such
statement in its invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances… wherein a clear pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction59 .

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the President’s consent notwithstanding the
invocation of executive privilege to justify such prohibition. The Court did not rule that the power to
conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging
instead that the viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if
the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance
in legislative inquiries.

Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a
member of the AFP to appear before Congress, the legislative body seeking such testimony may
seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of
the executive branch or the armed forces, the persons who wield authority and control over the
actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses
against the same — whether grounded on executive privilege, national security or similar concerns
— would be accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to comply with
the decision of the courts, whether the effect of the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional
parameters of power.60 This is the fair and workable solution implicit in the constitutional allocation of
powers among the three branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review
does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with
a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the notion of officers appearing
before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the President’s order
on them and other military officers not to testify before Congress without the President’s consent.
Yet these issues ultimately detract from the main point — that they testified before the Senate
despite an order from their commanding officer and their commander-in-chief for them not to do
so,61 in contravention of the traditions of military discipline which we affirm today. The issues raised
1âw phi 1

by petitioners could have very well been raised and properly adjudicated if the proper procedure was
observed. Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior officer under the setup we have
prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this petition.

Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed, and
moreover, provides for an orderly manner by which the same result could have been achieved
without offending constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 208566 November 19, 2013

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

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

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

G.R. No. 208493

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

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

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

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

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it
persists in reference to political bills that "bring home the bacon" to a legislator‘s district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district.7 Some scholars on the subject further use it to refer to
legislative control of local appropriations.8

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

II. History of Congressional Pork Barrel in the Philippines.

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

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

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

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

B. Martial Law Era (1972-1986).

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

C. Post-Martial Law Era:

 Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented23 that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion
to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to
the submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported26 that
by 1992, Representatives were receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

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

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

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

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
 The following year, or in 1998,36 the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list
was no longer required as the list itself sufficed for the release of CDF Funds.

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

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

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa
Mahihirap Program Fund,"44and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of
the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless, the provisions
in the 2003 budgets of the Department of Public Works and Highways51 (DPWH) and
the DepEd52 required prior consultation with Members of Congress on the aspects of
implementation delegation and project list submission, respectively. In 2004, the
2003 GAA was re-enacted.53

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

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their participation
in the proposal and identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior
consultation with the concerned Member of Congress61anent certain aspects of
project implementation.

Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate.
For such purpose, the law stated that "the amount of at least ₱250 Million of the
₱500 Million allotted for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64(GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68 (the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President: Representatives were given ₱70
Million each, broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft
projects"; while ₱200 Million was given to each Senator as well as the Vice-
President, with a ₱100 Million allocation each for "hard" and "soft projects." Likewise,
a provision on realignment of funds was included, but with the qualification that it
may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways to
realign PDAF Funds, with the further conditions that: (a) realignment is within the
same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the concurrence of
the legislator concerned.71

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

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

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if
they have the technical capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the term‘s usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth.82 Due to the energy-related activities of the government in the Malampaya natural
gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of
PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR).
PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described
as a special funding facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were
‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."93 "The
publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage."94

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

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

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)100 by the DBM, the application of these funds and the implementation of
projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted to
₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co A‘s findings contained in its Report
No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

● Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.
 ● Infrastructure projects were constructed on private lots without these having been
turned over to the government.

● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the

implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy

two (772) projects amount to ₱6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.

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

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

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

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

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

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

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

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

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

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

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

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b)
on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c)
on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to,
among others, the budgeting process and its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.

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

The Issues Before the Court

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

I. Procedural Issues.

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

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

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

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

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

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

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

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

A. Existence of an Actual Case or Controversy.

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

Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.

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

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

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

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

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

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

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

xxxx

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

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

xxxx

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

Solictor General Jardeleza: Yes, Your Honor.

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

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.129
The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.

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

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

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

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

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the CoA Report to be sufficient.

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

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

B. Matters of Policy: the Political Question Doctrine.

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

The Court must deny respondents‘ submission.

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

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

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

C. Locus Standi.

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

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

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

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject matter, and of
causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF
Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality –
and, thus, hardly a judgment on the merits – in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of
Congress, who actually spend them according to their sole discretion" or "pertinent evidentiary
support to demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a
common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.

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

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

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

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

II. Substantive Issues.

A. Definition of Terms.

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

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

Considering petitioners‘ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner
by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the fund’s utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;160 and

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

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

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

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

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the other’s performance of its constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly
is entrusted to another."172 In other words, there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget
execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget execution cycle.174 This is rooted in
the principle that the allocation of power in the three principal branches of government is a grant of
all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation
of the national budget as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the same
is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress
enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution, which specifies that no money may
be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress‘ law -making role necessarily comes to an end and from there
the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere
oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In 1âwphi1

particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013
PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed."179 They state that the findings and recommendations in the
CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over
project implementation in complete violation of the constitutional principle of separation of
powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated
since the President maintains "ultimate authority to control the execution of the GAA‖ and that he
"retains the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify
projects so long as such proposal and identification are recommendatory."183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 –
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the identified project falls under a
general program listed in the said menu. Relatedly, Special Provision 2 provides that the
implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more
detailed priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the representative of the district concerned
concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be
seriously doubted that legislators have been accorded post-enactment authority to identify PDAF
projects.

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment of
funds shall be submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve
realignment from one project/scope to another within the allotment received from this Fund, subject
to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental
rule, as categorically articulated in Abakada, cannot be overstated – from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite the
contrary, respondents – through the statements of the Solicitor General during the Oral Arguments –
have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to
the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of
the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all
other provisions of law which similarly allow legislators to wield any form of post-enactment authority
in the implementation or enforcement of the budget, unrelated to congressional oversight, as
violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal
practices, through which legislators have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of
the 1987 Constitution states that such power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.195 Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the process of initiative and
referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would
be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed
to legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority
of the President to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency,197 or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198

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

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

xxxx

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

b. Application.

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

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

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

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

Sec. 27. x x x.

xxxx

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

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

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

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

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

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

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

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

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

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

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

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

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the President‘s power of item veto.
As petitioners aptly point out, the above-described system forces the President to decide between
(a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that would
aid in more stringently auditing the utilization of said Funds."216 Accordingly, she recommends the
adoption of a "line by line budget or amount per proposed program, activity or project, and per
implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for future contingencies cannot be an
excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is
that unconstitutional means do not justify even commendable ends.218

c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its
Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a
direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from
fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on
re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people‘s trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact
accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may
be checked is the power of congressional oversight. As mentioned in Abakada,222 congressional
oversight may be performed either through: (a) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;223 or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the implementation of the budget makes
it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a matter
before another office of government – renders them susceptible to taking undue advantage of their
own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area
of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based
on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject
of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative
or executive action.226Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

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

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and
3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development
of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local
affairs which are best resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for local development.230 The Court
agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project."231Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork
Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President – who do not represent any locality,
receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given
unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and
social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared
towards managing local affairs,235 their programs, policies and resolutions should not be overridden
nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-
enactment authority conferred to the latter was succinctly put by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate projects
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as
invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing
the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is
not an appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a Special Fund incidental
thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social Fund is merely incidental to the
"primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations
of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation
by Congress shall be made, except that it be ‘made by law,‘" an appropriation law may – according
to Philconsa – be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it
be "made by law," such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made in general as
well as in specific terms. The Congressional authorization may be embodied in annual laws, such as
a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
reiterate, if a legal provision designates a determinate or determinable amount of money and
allocates the same for a particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law"
under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery
bonus, production bonus; all money collected from concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President. (Emphases
supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of
the Energy Development Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting
five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than
₱150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development
projects and x x x the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the ₱24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.

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

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose
of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that the legislative guidelines for delegated
rule-making are indeed adequate. The first test is called the "completeness test." Case law states
that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard
test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate‘s authority and prevent
the delegation from running riot.247To be sufficient, the standard must specify the limits of the
delegate‘s authority, announce the legislative policy, and identify the conditions under which it is to
be implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use
the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may be confined
only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed
to include – or be restricted to – things akin to, resembling, or of the same kind or class as those
specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the
class it represents, namely energy development programs of the government;250 and, third, the
Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents‘ own position that it is limited only to
"energy resource development and exploitation programs and projects of the government."251 Thus,
while Section 8 of PD 910 may have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that
the Malampaya Funds would be used – as it should be used – only in accordance with the avowed
purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
Fund may be used "to first, finance the priority infrastructure development projects and second, to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds that while the second
indicated purpose adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same.
To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since
the said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
well as economic and residential development."253In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since – similar to the
above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did
so in the context of its pronouncements made in this Decision – petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto"255 (Presidential Pork Use
Report). Petitioners‘ prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and
the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use
Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latter‘s duty to furnish them with the
documents requested. While petitioners pray that said information be equally released to the CoA, it
must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern, however, if only to ensure that the
parameters of disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners‘ prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation
and absent any valid statutory prohibition, access to these documents should not be proscribed.
Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of
the list requested by petitioners therein, it nonetheless allowed access to the documents sought for
by the latter, subject, however, to the custodian‘s reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach,
it must equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency concerned prior to the issuance of the
Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated
SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing
agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO
because they cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable
interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013
TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the current Decision. In particular, the Court must
resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this
Decision is promulgated, may still be disbursed following the DBM‘s interpretation in DBM Circular
2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur
obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or
is subject to separate approval or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may
even be withdrawn under certain circumstances which will prevent the actual release of funds. On
the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is
subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate
or to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to
be able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA,
Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued
are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered
by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this
Decision’s promulgation, be enjoined and consequently reverted to the unappropriated surplus of the
general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court
sanctions the dealing of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD
910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD
1993, which were altogether declared by the Court as unconstitutional. However, these funds should
not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special
purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of
(a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated
as prospective in effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v.
San Roque Power Corporation,266 the doctrine merely "reflects awareness that precisely because the
judiciary is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme Court decision: ‘The actual existence of a
statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional
in view of the inherent defects in the rules within which it operates. To recount, insofar as it has
allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the principle of separation of powers; insofar as it
has conferred unto legislators the power of appropriation by giving them personal, discretionary
funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a
stake in the affairs of budget execution, an aspect of governance which they may be called to
monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite
the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured,
the Court urges the people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous public debate,
the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the Constitution so that no
one may heretofore detract from its cause nor stray from its course. After all, this is the Court‘s
bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d
legislators – whether individually or collectively organized into committees – to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as but not
limited to the areas of project identification, modification and revision of project identification, fund
release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum
allocations to legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases
(1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation of the principle of non-delegability of legislative
power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year
2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under
the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects" pursuant to Section 12 of Presidential
Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision
is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment
Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the
Presidential Social Fund shall remain therein to be utilized for their respective special purposes not
otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget
and Management be ordered to provide the public and the Commission on Audit complete
lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners‘ access to official documents already available and of public record which
are related to these funds must, however, not be prohibited but merely subjected to the custodian‘s
reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice
to a proper mandamus case which they or the Commission on Audit may choose to pursue through
a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases
in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the
political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds
of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

See Concurring Opinion

MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring Opinion NO PART

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

I concur and also join the concurring I join the Opinion of Justice Carpio, subject
opinion of Justice Carpio. to my Concurring & Dissenting Opinion.
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice
 I join the concurring opinion of J. A.T.
MARIANO C. DEL CASTILLO Carpio of the ponencia
Associate Justice ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

See Concurring Opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the
cases were assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice