Arigo v Swift (2014)

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to
file the present petition. SIaHTD
Locus standi is "a right of appearance in a court of justice on a given question." 10
Specifically, it is "a party's personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act being challenged, and
"calls for more than just a generalized grievance." 11 However, the rule on standing
is a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires,
such as when the subject matter of the controversy is of transcendental importance,
of overreaching significance to society, or of paramount public interest. 12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law." We
declared that the right to a balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and political rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own
and future generations. Thus: SaHcAC
Petitioners minors assert that they represent their generation as well as generations
yet unborn. We find no difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm and harmony for
the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same

time, the performance of their obligation to ensure the protection of that right for
the generations to come. 15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors
and generations yet unborn, is now enshrined in the Rules which allows the filing of
a citizen suit in environmental cases. The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct interest, on the principle that
humans are stewards of nature." 16
Leonen (concurring)
The pleadings presented the following issues: a) whether petitioners have legal
standing to file a petition for writ of kalikasan with prayer for temporary
environmental protection order (TEPO), and b) whether the doctrine of sovereign
immunity applies to foreign respondents.
Petitioners argued that they have locus standi. 20 Having categorized the petition
as a citizen's suit, they alleged that they are representing "others, including minors
and generations yet unborn" in asserting their constitutional right to a balanced and
healthful ecology. 21 Petitioners cited this court's ruling in Oposa v. Factoran that
Article II, Section 16 of the 1987 Constitution was immediately enforceable. The
pronouncement was anchored on the premise that the right to a balanced and
healthful ecology belonged "to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation." 22 HATICc
The parties do not have legal standing
Petitioners brought this case as a citizen's suit under the Tubbataha Reefs Natural
Park Act of 2009, in conjunction with the Rules of Procedure for Environmental
Cases. 37
Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows any citizen to file
a civil, criminal, or administrative case against:
(a)
Any person who violates or fails to comply with the provisions of this Act its
implementing rules and regulations; or
(b)
Those mandated to implement and enforce the provisions of this Act with
respect to orders, rules and regulations issued inconsistent with this Act; and/or
(c)
Any public officer who wilfully or grossly neglects the performance of an act,
specifically enjoined as a duty by this Act or its implementing rules and regulations;
or abuses his authority in the performance of his duty; or, in any manner improperly
performs his duties under this act or its implementing rules and regulations:
Provided, however, That, no suit can be filed until after a thirty (30)-day notice has
been given to the public officer and the alleged violator concerned and no
appropriate action has been taken thereon. The court shall exempt such action from

the payment of filing fees, upon prima facie showing of the non-enforcement or
violations complained of and exempt the plaintiff from the filing of an injunction
bond for the issuance of preliminary injunction. In the event that the citizen should
prevail, the court shall award reasonable attorney's fees, moral damages and
litigation costs as appropriate.
While the Tubbataha Reefs Natural Park Act enumerates causes of action available
against duty-bearers, it does not specifically describe the parties who may file a
case. TcCDIS
The "environmental" nature of this petition, based upon the alleged violation of the
Tubbataha Reefs Natural Park Act, by itself does not and should not automatically
render the Rules of Procedure for Environmental Cases applicable. At best, it must
be reconciled with rules on parties as contained in the Rules of Court. This is to
preclude a situation where the interpretation of the Rules of Procedure for
Environmental Cases results in a ruling inconsistent or contrary to established legal
concepts. It is my position that unless the remedy sought will serve the purpose of
preventing an environmental catastrophe, the traditional procedural route should be
taken. This means that even in environmental cases, Rule 3, Section 2, 3, or 12 of
the 1997 Rules of Civil Procedure should still also apply.
Real party in interest
Rule 3, Section 2 pertains to real party in interest:
SEC. 2.
Parties in interest. A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit. Unless otherwise authorized by law or these Rules, every action
must be prosecuted or defended in the name of the real party in interest. (2a) 38
A real party in interest is a litigant whose right or interest stands to benefit or get
injured by the judgment of the case. 39 The interest referred to must be material
interest, founded upon a legal right sought to be enforced. 40 They bring a suit
because the act or omission of another has caused them to directly suffer its
consequences. 41 Simply put, a real party in interest has a cause of action based
upon an existing legal right-duty correlative.
Representatives as parties
Section 3 of Rule 3, on the other hand, discusses parties acting in representation of
the real party in interest: ACTESI
SEC. 3.
Representatives as parties. Where the action is allowed to be
prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and shall be
deemed to be the real party in interest. A representative may be a trustee of an
express trust, a guardian, an executor or administrator, or a party authorized by law

or these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal except when
the contract involves things belonging to the principal. (3a) 42
A "representative" is not the party who will actually benefit or suffer from the
judgment of the case. The rule requires that the beneficiary be identified as he or
she is deemed the real party in interest. 43 This means that acting in a
representative capacity does not turn into a real party in interest someone who is
otherwise an outsider to the cause of action.
This rule enumerates who may act as representatives, including those acting in a
fiduciary capacity. While not an exhaustive list, it does set a limit by allowing only
those who are "authorized by law or these Rules." 44 In environmental cases, this
section may be used to bring a suit, provided that two elements concur: a) the suit
is brought on behalf of an identified party whose right has been violated, resulting
in some form of damage, and b) the representative authorized by law or the Rules
of Court to represent the victim.
The citizen's suit under the Rules of Procedure for Environmental Cases is a
representative suit. A citizen's suit is defined: HCTEDa
SEC. 5.
Citizen suit. Any Filipino citizen in representation of others, including
minors or generations yet unborn, may file an action to enforce rights or obligations
under environmental laws. Upon the filing of a citizen suit, the court shall issue an
order which shall contain a brief description of the cause of action and the reliefs
prayed for, requiring all interested parties to manifest their interest to intervene in
the case within fifteen (15) days from notice thereof. The plaintiff may publish the
order once in a newspaper of a general circulation in the Philippines or furnish all
affected barangays copies of said order.
In my view, this rule needs to be reviewed. A citizen's suit that seeks to enforce
environmental rights and obligations may be brought by any Filipino who is acting
as a representative of others, including minors or generations yet unborn. 45 As
representatives, it is not necessary for petitioners to establish that they directly
suffered from the grounding of the USS Guardian and the subsequent salvage
operations. However, it is imperative for them to indicate with certainty the injured
parties on whose behalf they bring the suit. Furthermore, the interest of those they
represent must be based upon concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of a potential "injury."
This is particularly important when the parties sought to be represented are "minors
and generations yet unborn."
"Minors and generations yet unborn" is a category of real party in interest that was
first established in Oposa v. Factoran. In Oposa v. Factoran, this court ruled that the
representatives derived their personality to file a suit on behalf of succeeding

generations from "intergenerational responsibility." 46 The case mirrored through

jurisprudence the general moral duty of the present generation to ensure the full
enjoyment of a balanced and healthful ecology by the succeeding generations. 47
IDEScC
Since environmental cases necessarily involve the balancing of different types and
degrees of interests, allowing anyone from the present generation to represent
others who are yet unborn poses three possible dangers.
First, they run the risk of foreclosing arguments of others who are unable to take
part in the suit, putting into question its representativeness. Second, varying
interests may potentially result in arguments that are bordering on political issues,
the resolutions of which do not fall upon this court. Third, automatically allowing a
class or citizen's suit on behalf of "minors and generations yet unborn" may result in
the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.
Decisions of this court will bind future generations. The unbridled and misguided
use of this remedy by supposed representatives may not only weaken the minors'
and unborn's ability to decide for themselves but may have unforeseen and
unintended detrimental effects on their interests.
The last point is especially crucial in light of res judicata. A long-established doctrine
on litigation, res judicata:
. . . is an old axiom of law, dictated by wisdom and sanctified by age, and founded
on the broad principle that it is to the interest of the public that there should be an
end to litigation by the same parties over a subject once fully and fairly adjudicated.
It has been appropriately said that the doctrine is a rule pervading every wellregulated system of jurisprudence, and is put upon two grounds embodied in
various maxims of the common law: one, public policy and necessity, which makes
it to the interest of the State that there should be an end to litigation interest
reipublicae ut sit finis litium; the other, the hardship on the individual that he should
be vexed twice for one and the same cause nemo debet bis vexari pro una et
eadem causa. A contrary doctrine would subject the public peace and quiet to the
will and neglect of individuals and prefer the gratification of the litigious disposition
on the part of suitors to the preservation of the public tranquillity and happiness. 48
(Emphasis supplied, citation omitted)
The elements of res judicata are:

TDCcAE

. . . (1) the former judgment must be final; (2) the former judgment must have been
rendered by a court having jurisdiction of the subject matter and the parties; (3) the
former judgment must be a judgment on the merits; and (4) there must be between
the first and subsequent actions (i) identity of parties or at least such as
representing the same interest in both actions; (ii) identity of subject matter, or of

the rights asserted and relief prayed for, the relief being founded on the same facts;
and, (iii) identity of causes of action in both actions such that any judgment that
may be rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration. 49 (Emphasis supplied,
citation omitted)

An absolute identity of the parties is not required for res judicata to apply, for as
long as there exists an identity or community of interest. 50
Res judicata renders conclusive between the parties and their privies a ruling on
their rights, not just for the present action, but in all subsequent suits. This pertains
to all points and matters judicially tried by a competent court. The doctrine bars
parties to litigate an issue more than once, and this is strictly applied because "the
maintenance of public order, the repose of society . . . require that what has been
definitely determined by competent tribunals shall be accepted as irrefragable legal
truth." 51
Considering the effect of res judicata, the ruling in Oposa v. Factoran has opened a
dangerous practice of binding parties who are yet incapable of making choices for
themselves, either due to minority or the sheer fact that they do not yet exist. Once
res judicata sets in, the impleaded minors and generations yet unborn will be
unable to bring a suit to relitigate their interest.
Perhaps it is time to revisit the ruling in Oposa v. Factoran.

cDIaAS

That case was significant in that, at that time, there was need to call attention to
environmental concerns in light of emerging international legal principles. While
"intergenerational responsibility" is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their own
assessment based on their actual concerns. The present generation must restrain
itself from assuming that it can speak best for those who will exist at a different
time, under a different set of circumstances. In essence, the unbridled resort to
representative suit will inevitably result in preventing future generations from
protecting their own rights and pursuing their own interests and decisions. It
reduces the autonomy of our children and our children's children. Even before they
are born, we again restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases
should be allowed only when a) there is a clear legal basis for the representative
suit; b) there are actual concerns based squarely upon an existing legal right; c)
there is no possibility of any countervailing interests existing within the population
represented or those that are yet to be born; and d) there is an absolute necessity
for such standing because there is a threat of catastrophe so imminent that an

immediate protective measure is necessary. Better still, in the light of its costs and
risks, we abandon the precedent all together.
Class suit
The same concern regarding res judicata also applies to a class suit.
Rule 3, Section 12 of the Rules of Court states:
SEC. 12.
Class suit. When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is impracticable to
join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned may
sue or defend for the benefit of all. Any party in interest shall have the right to
intervene to protect his individual interest. (12a) HECaTD
In Mathay et al. v. The Consolidated Bank and Trust Company, 52 this court held
that a class suit must essentially contain the following elements:
The necessary elements for the maintenance of a class suit are accordingly (1) that
the subject matter of the controversy be one of common or general interest to
many persons, and (2) that such persons be so numerous as to make it
impracticable to bring them all to the court. An action does not become a class suit
merely because it is designated as such in the pleadings. Whether the suit is or is
not a class suit depends upon the attending facts, and the complaint, or other
pleading initiating the class action should allege the existence of the necessary
facts, to wit, the existence of a subject matter of common interest, and the
existence of a class and the number of persons in the alleged class, in order that
the court might be enabled to determine whether the members of the class are so
numerous as to make it impracticable to bring them all before the court, to contrast
the number appearing on the record with the number in the class and to determine
whether claimants on record adequately represent the class and the subject matter
of general or common interest.
The complaint in the instant case explicitly declared that the plaintiffs-appellants
instituted the "present class suit under Section 12, Rule 3, of the Rules of Court in
behalf of CMI subscribing stockholders" but did not state the number of said CMI
subscribing stockholders so that the trial court could not infer, much less make sure
as explicitly required by the statutory provision, that the parties actually before it
were sufficiently numerous and representative in order that all interests concerned
might be fully protected, and that it was impracticable to bring such a large number
of parties before the court. ScAHTI
The statute also requires, as a prerequisite to a class suit, that the subject-matter of
the controversy be of common or general interest to numerous persons. Although it
has been remarked that the "innocent 'common or general interest' requirement is

not very helpful in determining whether or not the suit is proper," the decided cases
in our jurisdiction have more incisively certified the matter when there is such
common or general interest in the subject matter of the controversy. By the phrase
"subject matter of the action" is meant "the physical facts, the things real or
personal, the money, lands, chattels, and the like, in relation to which the suit is
prosecuted, and not the delict or wrong committed by the defendant." 53 (Emphasis
supplied, citations omitted)
The same case referred to the United States Federal Rules of Civil Procedure. After
having been raised by Mathay et al. as legal basis for its class suit, this court held:
. . . We have no conflict with the authorities cited; those were rulings under the
Federal Rules of Civil Procedure, pursuant to Rule 23 of which, there were three
types of class suits, namely: the true, the hybrid, and the spurious, and these three
had only one feature in common, that is, in each the persons constituting the class
must be so numerous as to make it impracticable to bring them all before the court.
The authorities cited by plaintiffs-appellants refer to the spurious class action Rule
23 (a) (3) which involves a right sought to be enforced, which is several, and there
is a common question of law or fact affecting the several rights and a common relief
is sought. The spurious class action is merely a permissive joinder device; between
the members of the class there is no jural relationship, and the right or liability of
each is distinct, the class being formed solely by the presence of a common
question of law or fact. This permissive joinder is provided in Section 6 of Rule 3, of
our Rules of Court. Such joinder is not and cannot be regarded as a class suit, which
this action purported and was intended to be as per averment of the complaint.
It may be granted that the claims of all the appellants involved the same question
of law. But this alone, as said above, did not constitute the common interest over
the subject matter indispensable in a class suit. 54 (Emphasis supplied, citations
omitted) ACTISD
In a class suit, petitioners necessarily bring the suit in two capacities: first, as
persons directly injured by the act or omission complained of; and second, as
representatives of an entire class who have suffered the same injury. In order to
fully protect all those concerned, petitioners must show that they belong in the
same universe as those they seek to represent. More importantly, they must
establish that, in that universe, they can intervene on behalf of the rest.
These requirements equally apply in environmental cases.
Petitioners who bring the suit both for themselves and those they seek to represent
must share a common legal interest that is, the subject of the suit over which
there exists a cause of action is common to all persons who belong to the group. 55
As a result, the right sought to be enforced is enjoyed collectively, and not
separately or individually. 56 The substantial injury must have been suffered by
both the parties bringing the suit and the represented class.

However, it is recognized that any damage to the environment affects people

differently, rendering it impossible for the injury suffered to be of the same nature
and degree for each and every person. For instance, second-hand smoke from one
who lights up a cigarette may cause lung and other health complications of a much
graver degree to exposed commuters, compared to those who are kept insulated by
well-maintained and well-ventilated buildings. The same may be said for dumpsites
along the shores of a bay. The gravity of injury they cause to those whose source of
livelihood is purely fishing in the affected area would be entirely different from that
suffered by an office worker.
The differences in effects, ranging from miniscule to grave, increase the possibility
of "free-riders" in a case. This results in a negative externality: an environmental
management concept that delves into the effect of an individual's or firm's action on
others. 57 In this case, the effect on others is a disadvantage or an injury. HSTCcD
In most instances where this free-rider or negative externality exists, a suit is not
filed because the cost of maintaining and litigating outweighs the actual damage
suffered due to the act or omission of another. The theory is that bringing a class
suit allows those who are not as affected as petitioners, though they may share the
same interest, to latch their claim on someone else without any personal expense.
There must be some assurances, however, that the interests are the same and the
arguments that should have been brought by others who do not have the resources
to bring the suit are properly represented. This is why the rules allow courts to be
liberal in assessing "common interest."
Another essential element of a class suit is that petitioners must be sufficiently
numerous and representative so as to fully protect the interest of all concerned. One
of the dangers of bringing a class suit is that while the parties' environmental
interest shares a common legal basis, the extent and nature of that interest differ
depending on circumstances.
In the case of Re: Request of the Plaintiffs, Heirs of the Passengers of the Doa Paz,
58 which quoted Moore's Federal Practice we noted:
A "true class action" distinguished from the so-called hybrid and the spurious
class action in U.S. Federal Practice "involves principles of compulsory joinder,
since . . . (were it not) for the numerosity of the class members all should . . . (be)
before the court. Included within the true class suit . . . (are) the shareholders'
derivative suit and a class action by or against an unincorporated association. . . . A
judgment in a class suit, whether favorable or unfavorable to the class, is binding
under res judicata principles upon all the members of the class, whether or not they
were before the court. It is the non-divisible nature of the right sued on which
determines both the membership of the class and the res judicata effect of the final
determination of the right." 59 (Emphasis supplied)

Those who bring class suits do so, carrying a heavy burden of representation. All the
parties represented may not have consented to the agency imposed on them.
EIaDHS
Courts, therefore, must ensure that the parties that bring the suit are sufficiently
numerous to ensure that all possible interests and arguments have been
considered. The community, class, group, or identity that is represented must be
sufficiently defined so that the court will be able to properly assess that the parties
bringing the suit are properly representative.
In view of the technical nature of some environmental cases, not only should the
parties be representative in terms of the interests and arguments that they bring,
they must likewise show that they have the capability to bring reasonably cogent,
rational, scientific, well-founded arguments. This is so because if they purportedly
represent a community, class, group, or identity, we should assume that all those
represented would have wanted to argue in the best possible manner.
The cogency and representativeness of the arguments can readily be seen in the
initiatory pleading. In the special civil actions invoked in this case, this court has the
discretion to scrutinize the initiatory pleading to determine whether it should grant
due course prior or after the filing of a comment. In my view, this pleading falls
short of the requirement of representativeness.
For instance, it is clear in some of the reliefs that were requested that the
arguments may not be what all those they purport to represent really want. As an
illustration, the petition requests:
3)

for respondents to stop all port calls and war games under the Balikatan;

The facts in this case and the writ of kalikasan certainly have no bearing on why this
court should issue an injunction against all port calls in any part of the country
made by all kinds of ships even if this is related to the Balikatan exercises. "War
games" even undertaken solely on land has no bearing on the subject matter of this
case. Also, in the facts as alleged in the pleading, it is not clear how all those
affected by the ecological mishap that may have occurred in the Tubbataha Reefs
would also be interested in stopping "war games under the Balikatan." The pleading
asserts that it represents all generations yet unborn. Thus, it includes the sons and
daughters of all government officials who are now involved in the Balikatan
exercises. It also includes the military commanders who are now administering such
exercise. The broad relief requested belies the representativeness of the suit.
HcISTE
Of similar nature are the following prayers for relief in the petition:
4)
for respondents to assume responsibility for prior and future environmental
damage in general and under the Visiting Forces Agreement (VFA);

5)
for the temporary definition of allowable activities near or around the
Tubbataha Reefs [Natural] Park, but away from the damaged site and the additional
buffer zone;
6)
for respondent Secretary of Foreign Affairs to negotiate with the United States
representatives for an agreement on environmental guidelines and accountability
pursuant to the VFA;
xxx

xxx

xxx

8)
for the declaration of exclusive criminal jurisdiction of Philippine authorities
over erring USS Guardian personnel;
xxx

xxx

xxx

14)
for the convention of a multisectoral technical working group that will provide
scientific and technical support to the Tubbataha Protected Area Management Board
(TPAMBI);
15)
for respondents Department of Foreign Affairs, Department of National
Defense, and the Department of Environmental and Natural Resources to review the
VFA and the Mutual Defense Treaty in light of the right to a balanced and healthful
ecology, and any violation related thereto;
16)
for the declaration of the grant of immunity under Articles V and VI of the VFA
as being violative of equal protection and/or the peremptory norm of
nondiscrimination; cIHDaE
17)

for permission to resort to continuing discovery measures

Not all environmental cases need to be brought as class suits. There is no

procedural requirement that majority of those affected must file a suit in order that
an injunctive writ or a writ of kalikasan can be issued. It is sufficient that the party
has suffered its own direct and substantial interest, its legal basis is cogent, and it
has the capability to move forward to present the facts and, if necessary, the
scientific basis for its analysis for some of these cases to be given due course.
Parenthetically, the humility of bringing suits only in the name of petitioners will
protect them from the charge that more than the legal arguments they want to
bring, they also want to impose their own political views as views which are
universally accepted.
In all environmental cases, it is also not necessary that generations yet unborn be
represented. It is not also necessary that minors bring the suit. In my view, pleading
their interests have no value added to the case except for its emotive effect at the
risk of encouraging a paternal attitude toward our children and for those belonging

to generations yet unborn. Certainly, it was not necessary with respect to the
putative cause of action relating to the grounding of the USS Guardian.
With the class suit improperly brought, the parties who filed this petition have no
legal standing. To protect the individuals, families, and communities who are
improperly represented, this case should be dismissed.

GMA Network v COMELEC 2014

GMA then claims that it has legal standing to bring the present suit because:
. . . First, it has personally suffered a threatened injury in the form of risk of criminal
liability because of the alleged unconstitutional and unlawful conduct of respondent
COMELEC in expanding what was provided for in R.A. No. 9006. Second, the injury is
traceable to the challenged action of respondent COMELEC, that is, the issuance of
the assailed Resolutions. Third, the injury is likely to be redressed by the remedy
sought in petitioner GMA's Petition, among others, for the Honorable Court to nullify
the challenged pertinent provisions of the assailed Resolutions. 15 EaSCAH

Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus
standi is raised to question the personality of the parties invoking the Court's
jurisdiction. The Court has routinely made reference to a liberalized stance when it
comes to petitions raising issues of transcendental importance to the country.
Invariably, after some discussions, the Court would eventually grant standing. 28
In this particular case, respondent also questions the standing of the petitioners. We
rule for the petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly
has standing since he is a candidate whose ability to reach out to the electorate is
impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct
injury they may suffer relative to their ability to carry out their tasks of
disseminating information because of the burdens imposed on them. Nevertheless,
even in regard to the broadcast companies invoking the injury that may be caused
to their customers or the public those who buy advertisements and the people
who rely on their broadcasts what the Court said in White Light Corporation v.
City of Manila 29 may dispose of the question. In that case, there was an issue as to
whether owners of establishments offering "wash-up" rates may have the requisite
standing on behalf of their patrons' equal protection claims relative to an ordinance
of the City of Manila which prohibited "short-time" or "wash-up" accommodation in
motels and similar establishments. The Court essentially condensed the issue in this

manner: "[T]he crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights."
30 The Court then went on to hold: TIESCA
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support that
party's participation in the case. More importantly, the doctrine of standing is built
on the principle of separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its coequal branches of government.
The requirement of standing is a core component of the judicial system derived
directly from the Constitution. The constitutional component of standing doctrine
incorporates concepts which concededly are not susceptible of precise definition. In
this jurisdiction, the extancy of "a direct and personal interest" presents the most
obvious cause, as well as the standard test for a petitioner's standing. In a similar
vein, the United States Supreme Court reviewed and elaborated on the meaning of
the three constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third party standing and, especially in the
Philippines, the doctrine of transcendental importance.
For this particular set of facts, the concept of third party standing as an exception
and the overbreadth doctrine are appropriate. . . .
xxx

xxx

xxx

American jurisprudence is replete with examples where parties-in-interest were

allowed standing to advocate or invoke the fundamental due process or equal
protection claims of other persons or classes of persons injured by state action. . . .
xxx

xxx

xxx

Assuming arguendo that petitioners do not have a relationship with their patrons for
the former to assert the rights of the latter, the overbreadth doctrine comes into
play. In overbreadth analysis, challengers to government action are in effect
permitted to raise the rights of third parties. Generally applied to statutes infringing
on the freedom of speech, the overbreadth doctrine applies when a statute
needlessly restrains even constitutionally guaranteed rights. In this case, the
petitioners claim that the Ordinance makes a sweeping intrusion into the right to
liberty of their clients. We can see that based on the allegations in the petition, the
Ordinance suffers from overbreadth. IHTaCE

We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a "wash-rate" time frame.
31
If in regard to commercial undertakings, the owners may have the right to assert a
constitutional right of their clients, with more reason should establishments which
publish and broadcast have the standing to assert the constitutional freedom of
speech of candidates and of the right to information of the public, not to speak of
their own freedom of the press. So, we uphold the standing of petitioners on that
basis.

Association of Flood Victims v COMELEC

Since petitioner Association of Flood Victims has no legal capacity to sue, petitioner
Hernandez, who is filing this petition as a representative of the Association of Flood
Victims, is likewise devoid of legal personality to bring an action in court. Neither
can petitioner Hernandez sue as a taxpayer because he failed to show that there
was illegal expenditure of money raised by taxation 10 or that public funds are
wasted through the enforcement of an invalid or unconstitutional law. 11
Besides, petitioners have no locus standi or legal standing. Locus standi or legal
standing is defined as: cHDAIS
. . . a personal and substantial interest in the case such that the party has sustained
or will sustain a direct injury as a result of the governmental act that is being
challenged. The term "interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. 12
In this case, petitioners failed to allege personal or substantial interest in the
questioned governmental act which is the issuance of COMELEC Minute Resolution
No. 12-0859, which confirmed the re-computation of the allocation of seats of the
Party-List System of Representation in the House of Representatives in the 10 May
2010 Automated National and Local Elections. Petitioner Association of Flood
Victims is not even a party-list candidate in the 10 May 2010 elections, and thus,
could not have been directly affected by COMELEC Minute Resolution No. 12-0859.

In view of our holding that petitioners do not have legal capacity to sue and have no
standing to file the present petition, we shall no longer discuss the issues raised in
this petition.

Araullo v Aquino III

Legal standing, as a requisite for the exercise of judicial review, refers to "a right of
appearance in a court of justice on a given question." 43 The concept of legal
standing, or locus standi, was particularly discussed in De Castro v. Judicial and Bar
Council, 44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to
regulate the invocation of the intervention of the Court to correct any official action
or policy in order to avoid obstructing the efficient functioning of public officials and
offices involved in public service. It is required, therefore, that the petitioner must
have a personal stake in the outcome of the controversy, for, as indicated in Agan,
Jr. v. Philippine International Air Terminals Co., Inc.: EATCcI
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions." Accordingly, it
has been held that the interest of a person assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus standi.
There, the Court held that the person who would assail the validity of a statute must
have "a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result." Vera was followed in Custodio v. President of
the Senate, Manila Race Horse Trainers' Association v. De la Fuente, Anti-Chinese
League of the Philippines v. Felix, and Pascual v. Secretary of Public Works. HCEaDI

Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion.
For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach
when the cases had "transcendental importance." Some notable controversies
whose petitioners did not pass the direct injury test were allowed to be treated in
the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to
resolve the issues raised by the petition due to their "far-reaching implications,"
even if the petitioner had no personality to file the suit. The liberal approach of
Aquino v. Commission on Elections has been adopted in several notable cases,
permitting ordinary citizens, legislators, and civic organizations to bring their suits
involving the constitutionality or validity of laws, regulations, and rulings. cSIHCA
However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the
petitioner represents the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others, it is enough that
he sufficiently demonstrates in his petition that he is entitled to protection or relief
from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern
only the public in general, such capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains
why: HISAET
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, where it was
held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff
in a citizen's suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of
mere public right, however . . . the people are the real parties . . . It is at least the
right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With
respect to taxpayer's suits, Terr v. Jordan held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied." 45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals
Co., Inc. 46 that "[s]tanding is a peculiar concept in constitutional law because in
some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest." ICTcDA

Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked
their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further dissipation
of public funds. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442
(Belgica) also assert their right as citizens to sue for the enforcement and
observance of the constitutional limitations on the political branches of the
Government. 47 On its part, PHILCONSA simply reminds that the Court has long
recognized its legal standing to bring cases upon constitutional issues. 48 Luna, the
petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the
petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule of law
and of paramount importance of the question in this action, not to mention its civic
duty as the official association of all lawyers in this country." 49
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi on
each of them. CTEDSI
In addition, considering that the issues center on the extent of the power of the
Chief Executive to disburse and allocate public funds, whether appropriated by
Congress or not, these cases pose issues that are of transcendental importance to
the entire Nation, the petitioners included. As such, the determination of such
important issues call for the Court's exercise of its broad and wise discretion "to
waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised." 50

Carpio (Separate)
Petitioners have standing to sue. The well-settled rule is that taxpayers, like
petitioners here, have the standing to assail the illegal or unconstitutional
disbursement of public funds. 2 Citizens, like petitioners here, also have standing to
sue on matters of transcendental importance to the public which must be decided
early, 3 like the transfer of appropriations from one branch of government to
another or to the constitutional bodies, since such transfer may impair the finely
crafted system of checks-and-balances enshrined in the Constitution. SACHcD

These opposing positions opportunely provide me the chance to reiterate the fresh
approach I first developed in my Separate Opinion in Imbong v. Executive Secretary
35 to clarify the Court's approaches in giving due course to and reviewing
constitutional cases.

As I explained in Imbong, the Court under the 1987 Constitution possesses three
powers:
(1)
the traditional justiciable cases involving actual disputes and controversies
based purely on demandable and enforceable rights;
(2)
the traditional justiciable cases as understood in (1), but additionally
involving jurisdictional and constitutional issues;
(3)
pure constitutional disputes attended by grave abuse of discretion in the
process involved or in their result/s.
The present petitions allege that grave abuse of discretion and violations of the
Constitution attended the DAP, from the perspectives of both its creation and terms,
and its sourcing and use of funds. In these lights, the exercise of our expanded
power of judicial review falls within the third kind above, i.e., the duty to determine
whether there has been grave abuse of discretion on the part of any governmental
body (in this case, by the Executive) to ensure that the boundaries drawn by the
Constitution have been and are respected and maintained.
That Rule 65 of the Rules of Court has been expressly cited, to my mind, is not a
hindrance to our present review as the allegations of the petitions and the remedies
sought, not their titles, determine our jurisdiction in the exercise of the power of
judicial review. EHSADa
1.

The Court's expanded power of

judicial review
In contrast with previous constitutions, the 1987 Constitution substantially fleshed
out the meaning of "judicial power," not only by confirming the meaning of the term
as understood by jurisprudence up to that time, but by going beyond the accepted
jurisprudential meaning of the term.
Section 1, Article VIII of the 1987 Constitution reads:
Section 1.
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, AND to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. (italics, emphases and underscore supplied)
Under these terms, the present Constitution not only integrates the traditional
definition of judicial power, but introduces as well a completely new power and duty
to the Judiciary under the last phrase "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."
This addition was apparently in response to the Judiciary's past experience of
invoking the political question doctrine to avoid cases that had political dimensions
but were otherwise justiciable. The addition responded as well to the societal
disquiet that resulted from these past judicial rulings.
Under the expanded judicial power, justiciability expressly and textually depends
only on the presence or absence of grave abuse of discretion, as distinguished from
a situation where the issue of constitutional validity is raised within a "traditionally"
justiciable case which demands that the requirement of actual controversy based on
specific legal rights must exist. Notably, even if the requirements under the
traditional definition of judicial power are applied, these requisites are complied with
once grave abuse of discretion is prima facie shown to have taken place. The
presence or absence of grave abuse of discretion is the justiciable issue to be
resolved.
Necessarily, a matter is ripe for adjudication under the expanded judicial power if
the assailed law or rule is already in effect. If something had already been
accomplished or performed by the Legislative and/or the Executive, and the
petitioner sufficiently alleges the existence of an immediate or threatened injury to
itself as a result of the challenged action, then the controversy cannot but already
be ripe for adjudication. 36
In the expanded judicial power, any citizen of the Philippines to whom the assailed
law or rule is shown to apply necessarily has locus standi since a constitutional
violation constitutes an affront or injury to the affected citizens of the country. If at
all, a less stringent requirement of locus standi only needs to be shown to
differentiate a justiciable case of this type from the pure or mere opinion that courts
cannot render.
The traditional rules on hierarchy of courts and transcendental importance, far from
being grounds for the dismissal of the petition raising the question of
unconstitutionality, are necessarily reduced to rules relating to the level of court
that should handle the controversy, as directed by the Supreme Court. HcACST
Thus, all courts have the power of expanded judicial review, but only when a
petition involves a matter of transcendental importance should it be directly filed
before this Court. Otherwise, the Court may either dismiss the petition or remand it
to the appropriate lower court, based on its consideration of the urgency,
importance, or the evidentiary requirements of the case.
In other words, petitions in order to successfully invoke the Court's power of
expanded judicial review must satisfy two essential requisites: first, they must
demonstrate a prima facie showing of grave abuse of discretion on the part of the

governmental body's actions; and second, they must prove that they relate to
matters of transcendental importance to the nation.
The first requirement establishes the need for the Court's exercise of expanded
judicial review powers; the second requirement justifies direct recourse to the Court
and a relaxation of standing requirements.
The present petitions clearly satisfy these requisites as explained below.
2.

Prima facie showing of grave abuse

of discretion
The respondents posit that the petitioners' allegations miserably failed to make a
case of grave abuse of discretion considering the "insufficiency and uncertainty of
the facts" alleged as they are mostly based on newspaper clippings and media
reports. 37 Given the innumerable allotments and disbursements, they argue that
the petitioners are required to establish with sufficient clarity the kinds of allotments
and disbursements complained of in the petitions. On this basis, the respondents
question the presence of an actual case or controversy in the petitions.
I cannot agree with the respondents' positions.
I note that aside from newspaper clippings showing the antecedents surrounding
the DAP, the petitions are filled with quotations from the respondents themselves,
either through press releases to the general public or as published in government
websites. 38 In fact, the petitions quoting the press release published in the
respondents' website enumerated disbursements released through the DAP; 39 it
also included admissions from no less than Secretary Abad regarding the use of
funds from the DAP to fund projects identified by legislators on top of their regular
PDAF allocations. 40
Additionally, the respondents, in the course of the oral arguments, submitted details
of the programs funded by the DAP, 41 and admitted in Court that the funding of
Congress' e-library and certain projects in the COA came from the DAP. 42 They
likewise stated in their submitted memorandum that the President "made available"
to the Commission on Elections (COMELEC) the "savings" of his department upon
request for funds. 43
The mechanics by which funds were pooled together to create and fund the DAP are
also evident from the statements published in the DBM website, 44 as well as in
national budget circulars and approved memoranda implementing the DAP. The
respondents also submitted a memo showing the President's approval of the DAP's
creation.
All of these cumulatively and sufficiently lead to a prima facie case of grave abuse
of discretion by the Executive in the handling of public funds. In other words, these

admitted pieces of evidence, taken together, support the petitioners' allegations

and establish sufficient basic premises for the Court's action on the merits. While
the Court, unlike the trial courts, does not conduct proceedings to receive evidence,
it must recognize as established the facts admitted or undisputedly represented by
the parties themselves.
First, the existence of the DAP itself, the justification for its creation, the
respondent's legal characterization of the source of DAP funds (i.e., unobligated
allotments and unreleased appropriations for slow moving projects) and the various
purposes for which the DAP funds would be used (i.e., for PDAF augmentation and
for "aiding" other branches of government and other constitutional bodies) are
clearly and indisputably shown. DCSTAH
Second, the respondents' undisputed realignment of funds from one point to
another inevitably raised questions that, as discussed above, are ripe for
constitutional scrutiny. 45
The established prima facie case means that without considering any contradicting
evidence, the allegations, admissions, official statements and documentary
evidence before the Court sufficiently show the existence of grave abuse of
discretion. This situation, to my mind, is patent from the allegations in the petitions,
read with the cited admissions and those obtained through the oral arguments,
particularly (1) on how savings had been generated and their uses; and (2) on the
transfer of funds budgeted for the Executive to the Legislative, the COA, and the
COMELEC.
a.

The lack of audit findings does not

negate grave abuse of discretion

The respondents additionally deny the existence of an actual case because the COA
has yet to render its audit findings to determine whether the DAP-funded projects
identified in the petitions are lawful or not, thus showing that the petitions may be
premature.
I do not find this contention persuasive.
The issue of criminal, civil or administrative liability, determined on the basis,
among others, of the COA's findings, does not and cannot preempt the issue of
constitutionality. In fact, the Court's finding of unconstitutionality inevitably leads to
the determination of the possibility of the commission of infractions that can give
rise to different liabilities. The Court's findings too should be material in the
appropriate proceedings where the liabilities arising from grave constitutional
violations are properly determined.
The prima facie case, as established and shown in these proceedings, is sufficient to
resolve the issue of whether the Executive committed grave abuse of discretion in

creating and implementing the DAP. In other words, the absence of any COA finding
on the validity of the disbursements under the DAP cannot render the present
petitions premature.
To avoid any confusion, let me restate and clarify my view that while the COA can
rule on the legality or regularity of an item of expense, it cannot rule on the
constitutionality of the measure that made the expenditure possible. This issue
remains for the courts, not for the COA, to decide upon.
On the same reasoning, the invocation of the presumption of constitutionality of
legislative and executive acts immediately loses its appeal when it is considered
that the presumption is never meant to shield government officials from challenges
against their official actions (or from liability) where the violation of the Constitution
is otherwise clear and unequivocal.
3.

Transcendental importance of the

issues presented by the petitions

The petitions likewise establish the second requirement of transcendental
importance. DHcEAa
While the concept of transcendental importance has no doctrinal definition, former
Supreme Court Justice Florentino P. Feliciano came up with the following
determinants whose degree of presence or absence can guide the courts in
determining whether a case is one of transcendental importance: (1) the character
of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party
with a more direct and specific interest in raising the questions being raised. 46
I submit that these determinants are all present in the cases before us.
For one, the Executive's undisputed creation and implementation of the DAP, which
involves billions of taxpayers' money (and which potentially involves billions more
unless halted), satisfy the first determinant. To point out a present obvious reality,
the Executive is even now engaged in a "shame" campaign to prod people to pay
their taxes. If taxes will continue to be faithfully paid, now and in the future, it is of
transcendental importance for the people to know how their tax money is spent or
misspent, and to be informed as well that they have this right.
For another, the petitioners' serious allegations of constitutional violation by the
Executive in transferring appropriations despite the non-existence of savings and
the respondents' commission of grave abuse of discretion in disregarding the
limitations of allowable transfer of appropriations under Section 25 (5), Article VI of
the Constitution as admitted by the respondents themselves satisfy the second
determinant. Based on the admissions made alone, the incidents of constitutional

violations are clear, patent and of utmost gravity; they affect the very nature of our
republican system of government.
Lastly, given the intrinsic nature of the petitions as taxpayers' suits (to prevent
wastage and misapplication of funds by an unconstitutional executive act), there
can really be no other party with a more direct and specific interest in raising the
issue of constitutionality than the petitioners, suing as taxpayers and invoking a
public right.
Over and above these determinants, the transcendental importance of these
present cases lies in the complementary relation of their presented issues with
those raised in the PDAF which the Court squarely ruled upon in the recent case of
Belgica v. Executive Secretary. 47
In Belgica, the Court declared the statutorily-created pork barrel system to be
unconstitutional for violating the core doctrine of separation of powers. The Court
ruled that the legislator's post-enactment participation in the areas of project
identification, fund release and fund realignment or role in the implementation or
enforcement of the GAAs are beyond Congress' oversight function, and are
therefore unconstitutional. The Court pertinently ruled:
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.
48
In this light, the statement of the COA Chairperson during the oral arguments is
particularly illuminating:
Justice Bersamin:
Alright, the next question Chairperson is this, do you remember if your office
has in [sic] pass an audit any activity or any transfer of funds under the DAP?
SDATEc
Chairperson Pulido Tan:
Under this particular administration, if I may say, Sir. . .
Justice Bersamin:

DAP only, its existence came only in the last quarter of 2011, 541 was
released only in the middle of 2012, so it is as recent as that, I do not talk about the
previous administration.
Chairperson Pulido Tan:
Your Honor, if I may, because from the way we have looked at it so far, it is
really nothing new. It's only called DAP now but in the past, the past administration
has been doing this kind of using funds and appropriated appropriations. In the
past, we would account for them under what we call, what was called then
"Reserved Controlled Account" ang tawag po dun, after a while and then eventually
it became a very generic Pooled Savings Programs. In 2011 that was when it was
called the "DAP" but the mechanism, Your Honor, is essentially the same, the items
of funds or appropriations being put together practically the same and. . . we saw
that happening even as far back as 2006. There were other releases because that
was how it was [sic] been even in the past, Your Honor, and its [sic] only been called
DAP now in 2011. . . it has been happening in the past, yes, we passed them on
audit, as in the same way that we also disallowed some in audit. And that is what is
going to be the course of event also in the present, Your Honor. 49
The Court should find it significant that it was the COA Chairperson herself who
spoke in this quoted transcript of the proceedings. Her statement lends credence to
the respondents' claim that NBC No. 541 is not really the "face of the DAP." NBC No.
541 only formalized what the Executive had been doing even prior to its issuance.
To point out the obvious, if a "practice" similar to the mechanism under the DAP
already existed and was being observed by the Executive in the execution of the
enacted budget in the same manner that the PDAF was also a "practice" during
the execution stage of a GAA and which was simply embodied in the GAA provisions
then there is every reason for the Court to squarely rule on the constitutionality
of the Executive's action in light of the seriousness of the allegations of
constitutional violations in the petitions.
In fact, the nature and amounts of the public funds involved are more than enough
to sound alarm bells to this Court if we are to maintain fealty to our role as the
guardian of the Constitution.
Secretary Abad's official, public and unrefuted statement that part of the releases of
DAP funds in 2012 was "based entirely on letters of request submitted to us by the
Senators" should neither escape the Court's attention nor should the Court gloss
over it. From the very start, his statement cast a much darker cloud on the validity
of the DAP in light of our pronouncement in Belgica 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 . . .
xxx

xxx

xxx

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. 50 ESCTaA
This ruling effectively emphasizes that the transcendental importance of these
cases alone renders it obligatory for this Court to allow the direct invocation of its
expanded judicial review powers and the relaxation of the strict application of
procedural requirements.
4.

Justiciability and Political Questions

Justiciability refers to the fitness or propriety of undertaking the judicial review of

particular matters or cases; it describes the character of issues that are inherently
susceptible of being decided on grounds recognized by law. 51
In contradistinction, political questions refer to those that, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government; it is concerned with issues dependent upon the wisdom, and not
the legality of a particular measure. 52 Where the issues so posed are political, the
Court normally cannot assume jurisdiction under the doctrine of separation of
powers except where the court finds that there are constitutionally-imposed limits
on the exercise of the powers conferred on a political branch of the government. 53
In these cases, the petitioners have strongly shown the textual limits to the
Executive's power over the implementation of the GAA, particularly in the handling
and management of funds. Far from bordering on political questions, the challenges
raised in the present petitions against the constitutionality of the DAP are actually
anchored on specific constitutional and statutory provisions governing the
realignment or transfer of funds.
The increase of government expenditures is a macroeconomic tool that is at the
disposal of the country's policy-makers to stimulate the country's economy and
improve economic growth. From this perspective, constitutional provisions touching
on economic matters are understandably broadly worded to accommodate

competing needs and to give policy-makers (and even the Court) the necessary
flexibility to decide policy questions or disputes on a case-to-case basis.
A broad formulation and interpretation of this guiding principle, however, cannot be
used to override plain and clear provisions of the Constitution (and relevant laws)
that are in place under the wide umbrella of the rule of law. While the three goals of
the economy under Section 1, Article XIII of the 1987 Constitution as a legal
translation of the Executive's economic justification for the DAP are addressed to
the political branches of the government, sole reliance on these objectives would
ignore the constitutional limitations applicable to the means for achieving them.
These legal limitations are precisely at the core of the issues presented to us in
these challenges to the constitutionality of the DAP's creation and implementation;
the issues before us are legal ones, not economic or political.
For this reason, I have brushed aside as beyond our authority to consider and rule
upon the views in other Opinions justifying the issuance of the DAP for largely
economic practicality reasons.
5.

The Court's boundary-keeping role

in times of political upheaval

As a final note on the procedural aspects, I believe that the present case provides
us with an excellent opportunity to revisit our role as boundary-keeper, a role
assigned to us to ensure that the limits set by the Constitution between and among
the different branches of government are observed. aECSHI
As early as Angara v. Electoral Commission, 54 this Court has identified itself as the
mediator in demarcating the constitutional limits in the exercise of power by each
branch of government. We then observed that these constitutional boundaries tend
to be forgotten or marred in times of societal disquiet or political excitement, and it
is the Court's role to clarify and reinforce the proper allocation of powers so that the
different branches of government would not act outside their respective spheres of
influence. We clarified that although we may, in effect, nullify governmental actions
abhorrent to the Constitution, we do not undertake this role because of "judicial
supremacy" but because this duty has been assigned to us by the Constitution.
Time and again, we have looked back to our Angara ruling when cases of national
interest reach the Court, and have used its guiding principles to determine whether
or not to act on the cases before us.
Since Angara, things have changed because of developments in our political history.
Since then, the Court has been granted expanded jurisdiction to determine not only
the traditional justiciable controversies that led to Angara, but also the existence of
grave abuse of discretion by any agency or instrumentality of the government.

Thus, our jurisdiction has been expanded to the extent of the new grant, in the
process affecting the traditional justiciability requirements developed since Angara.
The principles in Angara, to be sure, still carry a lot of truth and relevance, but these
principles now have to be adjusted to make way for the expanded jurisdiction that
this landmark ruling did not contemplate.
We still are the mediators between competing claims for authority but the 1987
Constitution has taken it one step further: we now also determine the presence or
absence of grave abuse of discretion on the part of any government agency or
instrumentality, regardless of the presence of political questions that may have
come with the controversy. This expansion necessarily gives rise to a host of
questions: does our constitutional duty end with the determination of the presence
or absence of grave abuse of discretion and the decision on the constitutional status
of a challenged governmental action? To what extent can we, acting within our
judicial power and the power of judicial review, clarify the consequences of our
decision?
Recent jurisprudence shows that we have been providing guidance to the bench and
the bar, to clarify the application of the law and of our decisions to future situations
not squarely covered by the presented facts and issues, but which may possibly
arise again because of the complexity and character of the issues involved. We
have set guidelines, for instance, on how to apply our ruling in Atong Paglaum v.
Comelec 55 on the requirements to qualify as a partylist under the partylist system.
As well, we provided guidelines in Republic v. CA and Molina 56 on how to interpret
and apply Article 36 of the Family Code.
It is in these lights that I favorably view the Court's resolve to clarify the application
of the operative fact doctrine to the issue of the DAP's constitutionality and the
potential consequences under a ruling of unconstitutionality. It is in this spirit that I
discuss these topics below. HCDAac

Crisologo v JEWM

Under normal circumstances, JEWM would be correct in their averment that the lack
of legal standing on the part of Spouses Crisologo in the case before RTC-Br. 14
prevents the latter's recourse via Rule 65.
This case, however, is an exception. In many instances, the Court has ruled that
technical rules of procedures should be used to promote, not frustrate the cause of
justice. Rules of procedure are tools designed not to thwart but to facilitate the
attainment of justice; thus, their strict and rigid application may, for good and

deserving reasons, have to give way to, and be subordinated by, the need to aptly
dispense substantial justice in the normal cause. 28
Be it noted that the effect of their non-participation as indispensable parties is to
preclude the judgment, orders and the proceedings from attaining finality. Time and
again, the Court has ruled that the absence of an indispensable party renders all
subsequent actions of the court null and void for want of authority to act, not only
as to the absent parties but even to those present. Consequently, the proceedings
before RTC-Br. 14 were null and void including the assailed orders, which may be
"ignored wherever and whenever it exhibits its head." 29
To turn a blind eye to the said nullity and, in turn, rule as improper the recourse to
Rule 65 by the lack of legal standing is to prolong the denial of due process to the
persons whose interests are indispensable to the final disposition of the case. It will
only result in a protracted litigation as Spouses Crisologo will be forced to rely on a
petition for the annulment of judgment before the CA (as the last remaining
remedy), which may again reach this Court. To prevent multiplicity of suits and to
expedite the swift administration of justice, the CA should have applied liberality by
striking down the assailed orders despite the lack of legal standing on the part of
Spouses Crisologo to file the Rule 65 petition before it. Besides, this lacking
requirement, of which Spouses Crisologo were not even at fault, is precisely the
reason why this controversy arose.

FUNA v MECO
Standing of Petitioner
The second preliminary issue is concerned with the standing of the petitioner to file
the instant mandamus petition. The COA claims that petitioner has none, for the
latter was not able to concretely establish that he had been aggrieved or prejudiced
by its failure to audit the accounts of the MECO. 71
Related to the issue of lack of standing is the MECO's contention that petitioner has
no cause of action to file the instant mandamus petition. The MECO faults petitioner
for not making any demand for it to submit to an audit by the COA or for the COA to
perform such an audit, prior to filing the instant petition. 72
We sustain petitioner's standing, as a concerned citizen, to file the instant petition.
The rules regarding legal standing in bringing public suits, or locus standi, are
already well-defined in our case law. Again, We cite David, which summarizes
jurisprudence on this point: 73 CScTDE

By way of summary, the following rules may be culled from the cases decided by
this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1)

the cases involve constitutional issues;

(2)
for taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional;
(3)
for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4)
for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and TECcHA
(5)
for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
We rule that the instant petition raises issues of transcendental importance,
involved as they are with the performance of a constitutional duty, allegedly
neglected, by the COA. Hence, We hold that the petitioner, as a concerned citizen,
has the requisite legal standing to file the instant mandamus petition. SaIACT
To be sure, petitioner does not need to make any prior demand on the MECO or the
COA in order to maintain the instant petition. The duty of the COA sought to be
compelled by mandamus, emanates from the Constitution and law, which explicitly
require, or "demand," that it perform the said duty. To the mind of this Court,
petitioner already established his cause of action against the COA when he alleged
that the COA had neglected its duty in violation of the Constitution and the law.
Principle of Hierarchy of Courts
The last preliminary issue is concerned with the petition's non-observance of the
principle of hierarchy of courts. The COA assails the filing of the instant mandamus
petition directly with this Court, when such petition could have very well been
presented, at the first instance, before the Court of Appeals or any Regional Trial
Court. 74 The COA claims that the petitioner was not able to provide compelling
reasons to justify a direct resort to the Supreme Court. 75 Cdpr
In view of the transcendental importance of the issues raised in the mandamus
petition, as earlier mentioned, this Court waives this last procedural issue in favor of
a resolution on the merits. 76

Sps Imbong v Ochoa

DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it
behooves the Court to resolve some procedural impediments.
I.
PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial
review over the controversy. HESAIT
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it
should submit to the legislative and political wisdom of Congress and respect the
compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process" 75 and "characterized by an inordinate amount of
transparency." 76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and positive norms with the
political departments, in particular, with Congress. 77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council, 78 the
remedies of certiorari and prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature. 79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on its
face" as it is not a speech-regulating measure. 80 TADCSE
In many cases involving the determination of the constitutionality of the actions of
the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution.
Each department of the government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere. 81 Thus, the 1987 Constitution
provides that: (a) the legislative power shall be vested in the Congress of the
Philippines; 82 (b) the executive power shall be vested in the President of the
Philippines; 83 and (c) the judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law. 84 The Constitution has truly
blocked out with deft strokes and in bold lines, the allotment of powers among the
three branches of government. 85 TADCSE
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other branches of government,

in striking down the acts of the Executive or the Legislature as unconstitutional.

Verily, the policy is a harmonious blend of courtesy and caution. 86 CITaSA
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. 87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch done
within its sphere of competence and authority, but at the same time, allows it to
cross the line of separation but only at a very limited and specific point to
determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion. 88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH Law,
it may do so where an attendant unconstitutionality or grave abuse of discretion
results. 89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution. THIASE
In this connection, it bears adding that while the scope of judicial power of review
may be limited, the Constitution makes no distinction as to the kind of legislation
that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the executive branches,
since its duty is not to review their collective wisdom but, rather, to make sure that
they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the
actions under review. 90 This is in line with Article VIII, Section 1 of the Constitution
which expressly provides:
Section 1.
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. [Emphases supplied] AEDCHc
As far back as Taada v. Angara, 91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal v.
COMELEC, 92 Aldaba v. COMELEC, 93 Magallona v. Ermita, 94 and countless others.
In Taada, the Court wrote: SEcAIC

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld."
Once a "controversy as to the application or interpretation of constitutional
provision is raised before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the separation
of powers and the balancing of powers among the three great departments of
government through the definition and maintenance of the boundaries of authority
and control between them. To him, judicial review is the chief, indeed the only,
medium of participation or instrument of intervention of the judiciary in that
balancing operation." 95

Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by
four exacting requisites, viz.: (a) there must be an actual case or controversy; (b)
the petitioners must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the lis mota of the case. 96 IcDHaT
Actual Case or Controversy
Proponents of the RH Law submit that the subject petitions do not present any
actual case or controversy because the RH Law has yet to be implemented. 97 They
claim that the questions raised by the petitions are not yet concrete and ripe for
adjudication since no one has been charged with violating any of its provisions and
that there is no showing that any of the petitioners' rights has been adversely
affected by its operation. 98 In short, it is contended that judicial review of the RH
Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. 99 The rule is that courts
do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable definite
and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof, on the other; that is, it must

concern a real, tangible and not merely a theoretical question or issue. There ought
to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. 100 aSIDCT
Corollary to the requirement of an actual case or controversy is the requirement of
ripeness. 101 A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of
the act complained of. 102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines, 103 where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued
that the Court has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act
in question being not yet effective does not negate ripeness. Concrete acts under a
law are not necessary to render the controversy ripe. Even a singular violation of
the Constitution and/or the law is enough to awaken judicial duty. AHcaDC
In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to carry
out the law have already been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute. 104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW. STaAcC
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is not
a speech regulating measure. 105
The Court is not persuaded.

TcDIEH

In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment. 106 These include religious freedom, freedom of the press, and the
right of the people to peaceably assemble, and to petition the Government for a
redress of grievances. 107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right
to one's freedom of expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld
the application of facial challenges to strictly penal statutes, 108 it has expanded its
scope to cover statutes not only regulating free speech, but also those involving
religious freedom, and other fundamental rights. 109 The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental Law not only to settle
actual controversies involving rights which are legally demandable and enforceable,
but also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. 110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution. DICcTa
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court
has authority to take cognizance of these kindred petitions and to determine if the
RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law
has been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced and applied against them,
111 and the government has yet to distribute reproductive health devices that are
abortive. 112
The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite
locus standi. TSHEIc

Locus standi or legal standing is defined as a personal and substantial interest in a

case such that the party has sustained or will sustain direct injury as a result of the
challenged governmental act. 113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions. 114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. The rule prohibits one from challenging the constitutionality of the
statute grounded on a violation of the rights of third persons not before the court.
This rule is also known as the prohibition against third-party standing. 115 STaIHc
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overreaching significance to
society, or of paramount public interest." 116
In Coconut Oil Refiners Association, Inc. v. Torres, 117 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases, 118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.
SCHATc
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted liberally
on the locus standi requirement. It has accorded certain individuals standing to sue,
not otherwise directly injured or with material interest affected by a Government
act, provided a constitutional issue of transcendental importance is invoked. The
rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been directly injured by the operation of a law or
any other government act. As held in Jaworski v. PAGCOR: 119 ACIDTE
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) STCDaI
In view of the seriousness, novelty and weight as precedents, not only to the public,
but also to the bench and bar, the issues raised must be resolved for the guidance
of all. After all, the RH Law drastically affects the constitutional provisions on the
right to life and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a
broad spectrum of society, the Court entertains no doubt that the petitions raise
issues of transcendental importance warranting immediate court adjudication. More
importantly, considering that it is the right to life of the mother and the unborn
which is primarily at issue, the Court need not wait for a life to be taken away before
taking action. aSTAIH
The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the
life of either the mother or her child is at stake, would lead to irreparable
consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction. 120 Suffice it to
state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it
has original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65. 121 EHTIcD
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26 (1), Article VI of the Constitution, 122 prescribing the one
subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional standards
of due process by concealing its true intent to act as a population control
measure. 123
To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure, 124 and that the concepts of "responsible parenthood"

and "reproductive health" are both interrelated as they are inseparable. 125
THCSAE
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
principally a population control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it claims to save lives and
keep our women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full
range of modern family planning products and methods. These family planning
methods, natural or modern, however, are clearly geared towards the prevention of
pregnancy. For said reason, the manifest underlying objective of the RH Law is to
reduce the number of births in the country. THAECc
It cannot be denied that the measure also seeks to provide pre-natal and post-natal
care as well. A large portion of the law, however, covers the dissemination of
information and provisions on access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive health care services, methods, devices,
and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law. 126 Indeed, remove the provisions that refer to contraception or are related to
it and the RH Law loses its very foundation. 127 As earlier explained, "the other
positive provisions such as skilled birth attendance, maternal care including pre-and
post-natal services, prevention and management of reproductive tract infections
including HIV/AIDS are already provided for in the Magna Carta for Women." 128
TcDHSI
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G.
Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress
to employ in the title of the enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as to include the
general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed law
and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation."
[Emphases supplied] TAHcCI
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane to

the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:
SEC. 2.
Declaration of Policy. The State recognizes and guarantees the
human rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right
to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
cEDaTS
The one subject/one title rule expresses the principle that the title of a law must not
be "so uncertain that the average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or different
one is really embraced in the act, or in omitting any expression or indication of the
real subject or scope of the act." 129 Considering the close intimacy between
"reproductive health" and "responsible parenthood" which bears to the attainment
of the goal of achieving "sustainable human development" as stated under its
terms, the Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation. DCScaT

Brion (Concurring)
I.

Preliminary Considerations

A.
The petitions are ripe for judicial review: the fresh approach under the 1987
Constitution
a.

The Historical Context of Judicial Power

b.

Analysis of Section 1, Article VIII of the 1987 Constitution.

b.1.

The Power of Judicial Review

b.2.

The New and Expanded Power

B.

The Three Types of Adjudicative Judicial Power

C.
The Court is duty bound to resolve the present petitions, not merely dismiss
them.
II.

Substantive Discussions

A.

The RH Law does not fully protect the right to life of the unborn child

a.

Overview

i.

The primacy of life in the Philippine context

b.

The 1987 Constitution

i.

The status of the unborn under the 1987 Constitution

ii.
The constitutional meaning of conception and to whom this right to life
extends
iii.

Section 12, Article II of the 1987 Constitution as a self-executing provision

c.

Section 12, Article II of the 1987 Constitution and Roe v. Wade

d.

Abortion, abortifacients and the RH Law

cIHDaE

e.
The RH law's definition of abortifacient textually complies with Section 12,
Article II, 1987 Constitution
f.

The principle of double effect

i.

The role of the DOH

ii.

Guidelines

B.

Parental Rights

a.

Parental rights in the Filipino context

b.

Parental rights and the State's interest in the youth

c.
The state has failed to show a compelling State interest to override parental
rights in reproductive health education
d.

The question on Section 14's constitutionality is premature

C.
Disturbing observations and concerns: The Effects of Contraceptives on
national, social and cultural values
D.

Freedom of Expression of Health Practitioners and the RH Law

I. Preliminary Considerations
A.

The petitions are ripe for judicial

review: the fresh approach under

the 1987 Constitution
I submit that the petitions are ripe for judicial review. My approach is anchored on a
"fresh" look at the 1987 Constitution and the innovations it introduced on the

Judicial Department, specifically, on the expansion of the Court's adjudicative

"judicial power." ScHADI
a.

The Historical Context of Judicial Power.

The 1935 Constitution mentioned the term "judicial power" but did not define it. The
Constitution simply located the seat of this power "in one Supreme Court and in
such inferior courts as may be established by law."
The 1973 Constitution, for its part, did not substantially depart from the 1935
formulation; it merely repeated this same statement and incorporated part of what
used to be another section in the 1935 Constitution into its Section 1. Thus, Section
1 of the Article on the Judicial Department of the 1973 Constitution provided:
The Judicial power shall be vested in one Supreme Court and in such inferior courts
as may be established by law. The National Assembly 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 five
thereof.
The 1987 Constitution, in contrast with the preceding Constitutions, substantially
fleshed out the meaning of "judicial power," not only by confirming the meaning of
the term as understood by jurisprudence up to that time, but by going beyond the
accepted jurisprudential meaning of the term. The changes are readily apparent
from a plain comparison of the provisions. The same Section 1 under Judicial
Department (Article VIII) now reads:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, AND to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. (emphasis and underscoring supplied) CSTDIE
b.

Analysis of Section 1, Article VIII

of the 1987 Constitution.

This simple comparison readily yields the reading through the repetition of the
sentence that both the 1935 and the 1973 Constitutions contained that the 1987
Judiciary provisions retain the same "judicial power" that it enjoyed under the 1935
and the 1973 Constitutions.
In addition, the 1987 Constitution, through the 2nd paragraph of its Section 1,
confirms that judicial power is wider than the power of adjudication that it

traditionally carried (by using the word "includes") and at the same time
incorporated the basic requirements for adjudication in the traditional concept,
namely, the presence of "actual controversies," based on "rights which are legally
demandable and enforceable."
The confirmation expressly mentions that the power is granted to "courts of justice"
and, aside from being a power, is imposed as a duty of the courts. Thus, the
Constitution now lays the courts open to the charge of failure to do their
constitutional duty when and if they violate the obligations imposed in Section 1,
Article VIII of the 1987 Constitution.
Section 5, Article VIII of the 1987 Constitution further fleshes out the irreducible
"powers" of the Supreme Court 1 in terms of its original, appellate, and review
adjudicative powers and its other non-adjudicative powers. 2 In so doing, Section 5
also confirmed the extent of the constitutionally-granted adjudicative power of the
lower courts that Congress has the authority to create (by defining, prescribing and
apportioning their jurisdictions), 3 as well as the grant of administrative, executive
and quasi-legislative powers to the Supreme Court, all within the sphere of its
judicial operations.
Section 5 now provides:
SECTION 5. The Supreme Court shall have the following powers:

DACTSa

(1)
Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
(2)
Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and orders of lower courts in:
(a)
All cases in which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b)
All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
(c)

All cases in which the jurisdiction of any lower court is in issue.

(d)
All criminal cases in which the penalty imposed is reclusion perpetua or
higher.
(e)

All cases in which only an error or question of law is involved.

(3)
Assign temporarily judges of lower courts to other stations as public interest
may require. Such temporary assignment shall not exceed six months without the
consent of the judge concerned.

(4)
Order a change of venue or place of trial to avoid a miscarriage of justice.
HTaIAC
(5)
Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice
of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules
shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court.
(6)
Appoint all officials and employees of the Judiciary in accordance with the
Civil Service Law.
b.1.

The Power of Judicial Review.

In the process of making "judicial power" more specific and in outlining the specific
powers of the Supreme Court, the Constitution made express the power of "judicial
review," i.e., the power to pass upon the constitutional validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation, 4 as the "law or the Rules of Court may
provide."
This formulation recognizes that the Supreme Court, even before the 1987
Constitution came, already had workable rules of procedure in place for the courts.
These rules cover ordinary actions, special civil actions, special proceedings,
criminal proceedings, and the rules of evidence in these proceedings, all of which
the 1987 Constitution recognized when it mentioned the Rules of Court, but subject
to the Supreme Court's power of amendment.
b.2.

The New and Expanded Power.

Still another addition, a completely new one, to the concept of judicial power under
the 1987 Constitution is the power "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." 5 This new power is innovative
since its recognition is separate from the traditional adjudicative power that Section
1 earlier confirms and which Section 5 in part fleshes out.
It is likewise a definitive expansion of judicial power as its exercise is not over the
traditional justiciable cases handled by judicial and quasi-judicial tribunals. Notably,
judicial power is extended over the very powers exercised by other branches or
instrumentalities of government when grave abuse of discretion is present. In other
words, the expansion empowers the judiciary, as a matter of duty, to inquire into

acts of lawmaking by the legislature and into law implementation by the executive
when these other branches act with grave abuse of discretion. aADSIc
This expansion takes on special meaning when read with the powers of the Court
under Section 5, particularly in relation with the Court's power of judicial review, i.e.,
the power to declare a treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordination or regulation
unconstitutional.
Under the expanded judicial power, justiciability expressly depends only on the
presence or absence of grave abuse of discretion, as distinguished from a situation
where the issue of constitutional validity is raised within a traditionally justiciable
case where the elements of actual controversy based on specific legal rights must
exist. In fact, even if the requirements for strict justiciability are applied, these
requisites can already be taken to be present once grave abuse of discretion is
prima facie shown to be present.
In the process of lawmaking or rulemaking, for example, an actual controversy is
already present when the law or rule is shown to have been attended by grave
abuse of discretion because it was passed; it operates; or its substantive contents
fall, outside the contemplation of the Constitution. 6 This should be contrasted with
allegations of constitutional invalidity in the traditional justiciable cases where, by
express constitutional requirement, the elements of (1) actual controversy involving
(2) demandable and enforceable rights, must be present because what essentially
comes to court is the traditional justiciable case, interwoven with constitutional
validity questions.
In the expanded judicial power, any citizen of the Philippines to whom the assailed
law or rule is shown to apply necessarily has locus standi since a constitutional
violation constitutes an affront or injury to the affected citizens of the country. If at
all, a less stringent requirement of locus standi only needs to be shown to
differentiate a justiciable case of this type from the pure or mere opinion that the
courts cannot render.
Necessarily, too, a matter is ripe for adjudication if the assailed law or rule is
already in effect. The traditional rules on hierarchy of courts and transcendental
importance, far from being grounds for the dismissal of the petition raising the
question of unconstitutionality, may be reduced to rules on the level of court that
should handle the controversy, as directed by the Supreme Court.
Thus, when grave abuse of discretion amounting to a clear constitutional violation is
alleged and preliminarily shown, the Supreme Court is duty-bound to take
cognizance of the case, or at least to remand it to the appropriate lower court,
based on its consideration of the urgency, importance or evidentiary requirements
of the case.

B.

The three types of Adjudicative Judicial Powers.

In sum, judicial power, as now provided under the 1987 Constitution, involves three
types of controversies, namely: DTEcSa
(1)
the traditional justiciable cases involving actual disputes and controversies
based purely on demandable and enforceable rights;
(2)
the traditional justiciable cases as understood in (1), but additionally
involving jurisdictional and constitutional issues;
(3)
pure constitutional disputes attended by grave abuse of discretion in the
process involved or in their result/s.
The first two types are already covered by the Rules of Court that, as recognized by
Section 5, are already in place, subject to the amendments that the Supreme Court
may promulgate.
The third type may inferentially be covered by the current provisions of the Rules of
Court, specifically by the rules on certiorari, prohibition and mandamus but, strictly
speaking, requires special rules that the current Rules of Court do not provide since
the third type does not involve disputes arising as traditionally justiciable cases.
Most importantly, the third type does not involve judicial or quasi-judicial exercise of
adjudicative power that the Supreme Court has traditionally exercised over lower
tribunals 7 to ensure that they stay within the confines of their adjudicative
jurisdiction.
In the petitions now before us, these new realities on judicial power necessarily
must be considered as the petitions allege actions by the legislature and by the
executive that lie outside the contemplation of the Constitution. Specifically, they
involve the constitutionally infirm provisions of the RH Law passed by Congress and
of the IRR of the law that the executive promulgated through the Department of
Health.
To be sure, the absence of specifically applicable rules cannot be a judicial excuse
for simply bodily lifting the rules for the traditional justiciable cases which the
present cases are not. In fact, the Court should not even be heard to give an excuse
as it is not undertaking a power that it may exercise at its discretion; the Court is
discharging an express duty imposed by the Constitution itself. HIaAED
In providing for procedural parameters, the Court may not simply hark back to
jurisprudence before the 1987 Constitution as they will not obviously apply, nor to
jurisprudence after the 1987 Constitution that failed to recognize the third type of
justiciable controversy for what it is.
Thus, in the present case, the Court must be guided strictly by the express
constitutional command. If past jurisprudence will be made to apply at all, they

should be closely read and adjusted to the reality of the third or new type of judicial
adjudicative power.
C.

The Court is duty bound to resolve

the present petitions, not simply

dismiss them.
The consolidated petitions before the Court raise several constitutional challenges
against the RH Law, ranging from violations of the right to life of the unborn (and,
concomitantly, of the constitutional prohibition against abortion); violations of the
freedom of religion and of speech; violations of the rights of parents and protected
familial interests; down to the mostly benign allegations of violation of natural law.
An important and insightful approach is the petitioners' attack on the RH law by
considering it as a population control measure that is beyond the power of the
government to carry out. The respondents parry this attack by arguing that
whatever impact the RH law would have on the population would only be incidental,
as the main target of the law is to recognize and enhance the reproductive health
rights of women. I agree with the ponencia's analysis of what the RH Law really is,
and adopt this analysis and conclusion for purposes of my own discussions in this
Opinion.
This snapshot of the petitions strongly shows how the economic, social, cultural and
religious dimensions of the RH law cut a swath through the traditional legal and
constitutional realm of adjudication. It is no surprise that it took the RH bill fourteen
years in Congress before it was enacted into law. AIHTEa
The sharp divide between the law's proponents' and opponents' views and beliefs
on the propriety of the RH law, within and outside its legal and constitutional
dimensions, reflect the law's encompassing impact: its implementation could, quite
possibly, change the face of Philippine society as we know it today. In fact, in this
Separate Opinion, I add my own nagging concerns and observations although I
know that these may go into the wisdom of the law and are not appropriate for
adjudication. I do this, however, in the name of judicial license that should allow me,
as a citizen, to express my own personal observations on the dispute at hand.
Indeed, if the RH law seeks to bring about strong, socio-political and economic
changes even at the price of our historical identity, culture and traditions, then so
be it, but the affected public should know the impact of the issues that soon enough
will confront the nation. It is important, too, that changes should not come at the
expense of the provisions of the Constitution the only document that holds the
nation together "during times of social disquietude or political excitement," as in the
present case. This should not be lost on us, as a Court, and should be a primary
consideration in our present task.

At the core of the petitions is the RH law's alleged violation of the right to life of the
unborn. I view the unborn's right to life within the much broader context of Article II,
Section 12 of the 1987 Constitution recognizing the sanctity and autonomy of
familial relations and the natural and primary parental right in child-rearing, on the
one hand, and Article XV, Sections 1 and 3, recognizing the key role of the family,
on the other.
These constitutional provisions serve as the compass guiding this Opinion and
should in fact serve as well for the Court's own decision-making. Even those in the
political departments of government should pay them heed, separately from the
political and economic considerations that, from the terms of the RH law and its IRR,
obviously served as the political departments' driving force. DCSETa
Under our constitutional regime, the judicial department is the only organ of
government tasked to guard and enforce the boundaries and limitations that the
people had put in place in governing themselves. This constitutional duty of the
Court has been expanded by the additional power of judicial review under the 1987
Constitution 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."
These are awesome powers carrying deep and far-ranging duties that we can only
discharge while fully aware of their accompanying responsibilities and pre-ordained
limits. The present Court, I am sure, is fully aware of the extent of these duties and
the limitations, particularly of the rule that we cannot set new polices nor seek to
implement current ones as these involve roles that are not constitutionally ours to
undertake.
I am aware, too, that the RH Law now before us carries multi-dimensional
repercussion, not all of them within the legal and constitutional realms. These
realities, however, should not leave us timid in undertaking our tasks; for as long as
we act within the confines of our constitutionally-defined roles, we cannot go wrong.
A sure measure to best ensure proper action is to consider the petitions under the
third type of judicial adjudications power (defined above) that we first consciously
utilize under the present Constitution. In this way, we give full respect to the
separation of powers; we step in only when the legislative and the executive step
out of the bounds defined for them by the Constitution.
For all these reasons, I join the ponencia's result in its ruling that a controversy
exists appropriate for this Court's initial consideration of the presence of grave
abuse of discretion, and consequent adjudication if the legislative and executive
actions can be so characterized. DTEA

Leonen (dissent)

LEONEN, J., dissenting:

"The most important thing we decide
is what not to decide."
Brandeis, J. 1
The Responsible Parenthood and Reproductive Health Act of 2012 should not be
declared unconstitutional in whole or in any of its parts given the petitions filed in
this case.
None of the petitions properly present an "actual case or controversy," which
deserves the exercise of our awesome power of judicial review. 2 It is our duty not
to rule on the abstract and speculative issues barren of actual facts. 3 These
consolidated petitions, which contain bare allegations, do not provide the proper
venue to decide on fundamental issues. The law in question is needed social
legislation.
That we rule on these special civil actions for certiorari and prohibition which
amounts to a pre-enforcement free-wheeling facial review of the statute and the
implementing rules and regulations 4 is very bad precedent. The issues are far
from justiciable. Petitioners claim in their class suits that they entirely represent a
whole religion, 5 the Filipino nation 6 and, worse, all the unborn. 7 The intervenors
also claim the same representation: Filipinos and Catholics. 8 Many of the petitions
also sue the President of the Republic. 9
We should apply our rules rigorously and dismiss these cases. The transcendental
importance of the issues they want us to decide will be better served when we wait
for the proper cases with the proper parties suffering real, actual or more imminent
injury. There is no showing of an injury so great and so imminent that we cannot
wait for these cases.
Claims relating to the beginning of life, the relationship of conscientious objection
and the right to religion, the effects of contraception, and even the ponencia's claim
that the family is put in danger if one spouse decides when there is a disagreement
between them are best decided within their real contexts so that we will be able to
narrowly tailor the doctrines in our decision. 10 The danger of ruling on abstract
cases is that we foreclose real litigation between real parties. 11 The danger of an
advisory opinion is that we are forced to substitute our own imagination of the facts
that can or will happen. In an actual case, there is judicial proof of the real facts that
frame our discretion.

The law clearly adopts a policy against abortion and prohibits abortifacients. 12 The
definition of abortifacients is sufficiently broad to cover many moral convictions
relating to the beginning of life. 13 We do not need to decide on these issue barren
of actual facts that can sharpen factual and legal positions.
The court cannot make a declaration on the beginning of life. Any declaration on
this issue will be fraught with contradictions. Even the Constitutional Commissioners
were not in full agreement; hence, the use of the word "conception" rather than
"fertilized ovum" in Article II, Section 12 of the Constitution. 14 There were glaring
factual inaccuracies peddled during their discussion. 15
Moreover, declaring the beginning of life complicates future constitutional
adjudication. This will have real repercussions on, among others, acceptable
medical procedures for ectopic pregnancies, 16 medical complications as a result of
pregnancy resulting from sexual assaults, 17 and on assisted reproductive
technologies. 18
The petitions have failed to present clear cases when the provisions for
conscientious objection would truly amount to a violation of religion. They have not
distinguished the relationship of conscience and specific religious dogma. 19 They
have not established religious canon that conflict with the general provision of
Sections 7, 17 and 23 of the law. The comments in intervention 20 in fact raise
serious questions regarding what could be acceptable Catholic doctrine on some
issues of contraception and sex as only for procreation. aESHDA
The majority has decided to nullify portions of the law on the basis of inchoate
Catholic doctrine without considering that the law as phrased would be acceptable
to other faiths, consciences and beliefs. Due to the failure of the petitioners to
present actual cases, it cannot be possible to see whether their religious objection
can be accommodated in the application and interpretation of the law rather than
nullify the provisions wholesale.
We should tread carefully when what is involved is a religion that is not the minority.
Invocations of religious freedom can be a disguised way of imposing the dominant
faith on others. This is especially true in physician-patient relationships. While the
physician may have her or his own religious beliefs, this should not improperly
dictate on the range of services that is wanted and needed by the patient. 21 Again,
there are no actual cases in specific contexts with clear religious beliefs pertaining
to accepted dogma of a religion established by the petitions. The proposed
declaration of unconstitutionality of portions of Section 23 is premature and
inadvisable. It also amounts to a judicial amendment of the physician's oath.
The law breaks the deadlock when there is disagreement between the spouses as to
whether to avail of a reproductive health technology. 22 The ponencia proposes that
this violates the right to family. 23 This is one conclusion. The other is that it allows

the couple to have a final decision and not continue with a perennial conflict. The
other possibility here is that the man, who most often is not the one who avails of
the reproductive health technology, dictates on the woman. This will then result in a
violation of the requirement of fundamental equality in Article II, Section 14 of the
Constitution. 24 The majority, in refusing to acknowledge the autonomy of
individuals over their own bodies even in the context of marriage, has just
strengthened patriarchy and increased the possibility for spousal abuse.
All the petitions are premature. At worse, the petitions attempt to impose a moral or
political belief upon the others by tempting this court to use its power of judicial
review.
This court is not the venue to continue the brooding and vociferous political debate
that has already happened and has resulted in legislation. 25 Constitutional issues
normally arise when the right and obligations become doubtful as a result of the
implementation of the statute. This forum does not exist to undermine the
democratically deliberated results coming from the Congress and approved by the
President. Again, there is no injury to a fundamental right arising from concrete
facts established with proof. Rather, the pleadings raise grave moral and
philosophical issues founded on facts that have not yet happened. They are the
product of speculation by the petitioners.
To steeled advocates who have come to believe that their advocacy is the one true
moral truth, their repeated view may seem to them as the only factual possibility.
Rabid advocacy of any view will be intolerant of the nuanced reality that proceeds
from conscious and deliberate examination of facts.
This kind of advocacy should not sway us.
Our competence is to decide on legal principle only in concrete controversies. We
should jealously and rigorously protect the principle of justiciability of constitutional
challenges. We should preserve our role within the current constitutional order. We
undermine the legitimacy of this court when we participate in rulings in the abstract
because there will always be the strong possibility that we will only tend to mirror
our own personal predilections. We should thus adopt a deferential judicial
temperament especially for social legislation.
This law should not be declared as unconstitutional, in whole or in part, on the basis
of the consolidated petitions. The status quo ante order against the Responsible
Parenthood and Reproductive Health Act of 2012 or Republic Act No. 10354 (RH
Law) should be lifted immediately.
There should be no further obstacle in having the entire law fully implemented.
I

No Actual Controversy,
"Facial Review" is Improper
It has never been the constitutional mandate of the Supreme Court to answer all of
life's questions. It is endowed instead with the solemn duty to determine when it
should decline to decide with finality questions that are not legal and those that are
theoretical and speculative. This court's duty includes its ability to stay its hand
when the issues presented are not justiciable. HaDEIc
The requirement in constitutional adjudication is that we decide only when there is a
"case or controversy." 26 This is clear in the second paragraph of Article VIII, Section
1 of the Constitution, thus:
Section 1.
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)
The requirement for a "case" or "controversy" locates the judiciary in the scheme of
our constitutional order. It defines our role and distinguishes this institution from the
other constitutional organs.
The ponencia claims that there is an actual case and controversy existing in the
present controversy, and it is ripe for determination. 27 The ponente reasons that
"[c]onsidering that the RH Law and its implementing rules have already taken
effect, and considering that the budgetary measures to carry out the law have
already been passed, it is evident that the subject petitions present a justiciable
controversy. As stated earlier, when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it not only becomes a right, but also a
duty of the Judiciary to [settle] the dispute." 28
I disagree.
An actual case or controversy is "one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution; the case must
not be moot or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice." 29 To be justiciable, the issues presented must be
"'definite and concrete, touching the legal relations of parties having adverse legal
interest;' a real and substantial controversy admitting of specific relief." 30 The term
justiciability refers to the dual limitation of only considering in an adversarial
context the questions presented before courts, and in the process, the courts' duty

to respect its co-equal branches of government's powers and prerogatives under

the doctrine of separation of powers. 31
There is a case or controversy when there is a real conflict of rights or duties arising
from actual facts. These facts, properly established in court through evidence or
judicial notice, provide the natural limitations upon judicial interpretation of the
statute. When it is claimed that a statute is inconsistent with a provision of the
Constitution, the meaning of a constitutional provision will be narrowly drawn.
Without the necessary findings of facts, this court is left to speculate leaving
justices to grapple within the limitations of their own life experiences. This provides
too much leeway for the imposition of political standpoints or personal predilections
of the majority of this court. This is not what the Constitution contemplates. Rigor in
determining whether controversies brought before us are justiciable avoids the
counter majoritarian difficulties attributed to the judiciary.
Without the existence and proper proof of actual facts, any review of the statute or
its implementing rules will be theoretical and abstract. Courts are not structured to
predict facts, acts or events that will still happen. Unlike the legislature, we do not
determine policy. We read law only when we are convinced that there is enough
proof of the real acts or events that raise conflicts of legal rights or duties. Unlike
the executive, our participation comes in after the law has been implemented.
Verily, we also do not determine how laws are to be implemented.
The existence of a law or its implementing orders or a budget for its implementation
is far from the requirement that there are acts or events where concrete rights or
duties arise. The existence of rules do not substitute for real facts.
Petitioners cite Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP) 32 as basis for asserting that
this court can take cognizance of constitutional cases without actual controversies.
In that case, this court was asked to rule on the validity of the Memorandum of
Agreement on the Ancestral Domain (MOA-AD) between the GRP and the Moro
Islamic Liberation Front (MILF) which included provisions on the definition of the
"Bangsamoro" people; the "Bangsamoro Juridical Entity" (BJE); territory of the
Bangsamoro homeland; the total production sharing between the central
government and the BJE relating to natural resources; and "associative relationship"
with the central government. 33 cHECAS
Even in that case, this court acknowledged the requirement of an actual case or
controversy in exercising the power of judicial review.
The power of judicial review is limited to actual cases or controversies. Courts
decline to issue advisory opinions or to resolve hypothetical or feigned problems, or
mere academic questions. The limitation of the power of judicial review to actual
cases and controversies defines the role assigned to the judiciary in a tripartite

allocation of power, to assure that the courts will not intrude into areas committed
to the other branches of government. 34
This court then ruled that the petitions were ripe for adjudication because of: "[1]
the failure of respondents to consult the local government units or communities
affected constitutes a departure by respondents from their mandate under E.O. No.
3; [2] respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any
branch of government is a proper matter for judicial review." 35 Citing David v.
Macapagal-Arroyo, this court allowed petitioners, petitioners-in-intervention, and
intervening respondents' claims of locus standi due to the paramount public interest
or transcendental importance of the issues involved.
The actual case in Province of North Cotabato was triggered by the process invoked
in the negotiation of the agreement and the claim that it exceeded the authority of
the government panel in talks with the Moro Islamic Liberation Front (MILF).
Executive Order No. 3 was already implemented by the acts of the negotiating
panel.
The ponencia's reading of Province of North Cotabato is inaccurate. My esteemed
colleague holds:
. . . Citing precedents, the Court ruled that the fact of the law or act in question
being not yet effective does not negate ripeness. Concrete acts under a law are not
necessary to render the controversy ripe. Even a singular violation of the
Constitution and/or law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect, and that the budgetary measures to
carry out the law have already been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute. 36 (Emphasis in the
original)
Unlike Province of North Cotabato, there is yet no implementation of the RH law. The
waiver of justiciability is the exception. It is not the general rule. 37 Province of
North Cotabato involved a peculiar set of facts that required this court to exercise
its power of judicial review. The respondents attempted to put the constitutional
question outside the court's sphere of judicial review through the performance of
acts that rendered a ripening case moot and academic. 38
In Garcia v. Executive Secretary, 39 this court was faced with the issue of the
constitutionality of Section 19 of Republic Act No. 8479 40 entitled "An Act
Deregulating the Downstream Oil Industry and for Other Purposes." This court held

that there was no justiciable controversy in the case as the issue raised went into
the policy or wisdom of the law, thus:
Stripped to its core, what petitioner Garcia raises as an issue is the propriety of
immediately and fully deregulating the oil industry. Such determination essentially
dwells on the soundness or wisdom of the timing and manner of the deregulation
Congress wants to implement through R.A. No. 8497. Quite clearly, the issue is not
for us to resolve; we cannot rule on when and to what extent deregulation should
take place without passing upon the wisdom of the policy of deregulation that
Congress has decided upon. To use the words of Baker v. Carr, the ruling that
petitioner Garcia asks requires "an initial policy determination of a kind clearly for
non-judicial discretion"; the branch of government that was given by the people the
full discretionary authority to formulate the policy is the legislative department.
THaDEA
xxx

xxx

xxx

Petitioner Garcia's thesis readily reveals the political, hence, non-justiciable, nature
of his petition; the choice of undertaking full or partial deregulation is not for this
Court to make. 41
Then in Atty. Lozano v. Speaker Nograles, 42 this court reiterated that "[i]n our
jurisdiction, the issue of ripeness [which is an aspect of the case or controversy
requirement] is generally treated in terms of actual injury to the plaintiff. Hence, a
question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it . . . [or when] an action has already
been accomplished or performed by a branch of government . . . ." 43
In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 44 this
court declined to rule on the constitutionality of Republic Act No. 9372 or "An Act to
Secure the State and Protect Our People from Terrorism," otherwise known as the
Human Security Act of 2007. Again, with respect to the requirement of the existence
of an actual case, this court held:
As early as Angara v. Electoral Commission, the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.
Information Technology Foundation of the Philippines v. COMELEC cannot be more
emphatic:

"[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly

interest, however intellectually challenging. The controversy must be justiciable
definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof on the other hand; that is, it
must concern a real and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts."
Thus, a petition to declare unconstitutional a law converting the Municipality of
Makati into a Highly Urbanized City was held to be premature as it was tacked on
uncertain, contingent events. Similarly, a petition that fails to allege that an
application for a license to operate a radio or television station has been denied or
granted by the authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem.
The Court dismissed the petition in Philippine Press Institute v. Commission on
Elections for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission
on Elections, to rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual controversy between real
litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory
grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a
perceived threat to any constitutional interest suffices to provide a basis for
mounting a constitutional challenge. This, however, is qualified by the requirement
that there must be sufficient facts to enable the Court to intelligently adjudicate the
issues. 45 (Emphasis supplied) DaAETS
Recently, this court in Corales v. Republic 46 passed upon the ripeness or
prematurity of a petition for prohibition assailing the Audit Observation
Memorandum (AOM) issued by the Provincial State Auditor of Laguna against
petitioner as Mayor. We again held that:
. . . this Court can hardly see any actual case or controversy to warrant the exercise
of its power of judicial review, Settled is the rule that for the courts to exercise the
power of judicial review, the following must be extant: (1) there must be an actual
case calling for the exercise of judicial power; (2) the question must be ripe for
adjudication; and (3) the person challenging must have the "standing." An actual
case or controversy involves a conflict of legal rights, an assertion of opposite legal

claims, susceptible of judicial resolution as distinguished from a mere hypothetical

or abstract difference or dispute. There must be a contrariety of legal rights that can
be interpreted and enforced on the basis of existing law and jurisprudence. Closely
related thereto is that the question must be ripe for adjudication. A question is
considered ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it.
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The requisites of actual case and ripeness are absent in the present case. To repeat,
the AOM issued by Andal merely requested petitioner Corales to comment/reply
thereto. Truly, the AOM already contained a recommendation to issue a Notice of
Disallowance; however, no Notice of Disallowance was yet issued. More so, there
was no evidence to show that Andal had already enforced against petitioner Corales
the contents of the AOM. . . . . The action taken by the petitioners to assail the AOM
was, indeed, premature and based entirely on surmises, conjectures and
speculations that petitioner Corales would eventually be compelled to reimburse
petitioner Dr. Angeles' salaries, should the audit investigation confirm the
irregularity of such disbursements. 47
The doctrinal character of the requirement of an actual case may also be inferred
from the tenor of the reservations of several members of this court in Province of
North Cotabato. 48
Then Justice Chico-Nazario, in voting to grant the motion to dismiss of the Office of
Solicitor General and to dismiss the petitions, pointed out that:
The Court should not feel constrained to rule on the Petitions at bar just because of
the great public interest these cases have generated. We are, after all, a court of
law, and not of public opinion. The power of judicial review of this Court is for
settling real and existent dispute, it is not for allaying fears or addressing public
clamor. In acting on supposed abuses by other branches of government, the Court
must be careful that it is not committing abuse itself by ignoring the fundamental
principles of constitutional law.
. . . . The Court must accord a co-equal branch of the government nothing less than
trust and the presumption of good faith.
xxx

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Upon the Executive Department falls the indisputably difficult responsibility of

diffusing the highly volatile situation in Mindanao resulting from the continued
clashes between the Philippine military and Muslim rebel groups. In negotiating for
peace, the Executive Department should be given enough leeway and should not be
prevented from offering solutions which may be beyond what the present

Constitution allows, as long as such solutions are agreed upon subject to the
amendment of the Constitution by completely legal means. 49 (Emphasis supplied)
Justice Velasco in that case emphasized the need to be vigilant in protecting the
doctrine of separation of powers enshrined in our Constitution, hence: HEAcDC
Over and above the foregoing considerations, however, is the matter of separation
of powers which would likely be disturbed should the Court meander into alien
territory of the executive and dictate how the final shape of the peace agreement
with the MILF should look like. The system of separation of powers contemplates the
division of the functions of government into its three (3) branches . . . . Consequent
to the actual delineation of power, each branch of government is entitled to be left
alone to discharge its duties as it sees fit. Being one such branch, the judiciary, as
Justice Laurel asserted in Planas v. Gil, "will neither direct nor restrain executive [or
legislative action]." Expressed in another perspective, the system of separated
powers is designed to restrain one branch from inappropriate interference in the
business, or intruding upon the central prerogatives, of another branch; it is a blend
of courtesy and caution, "a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other." . . . . The sheer
absurdity of the situation where the hands of executive officials, in their quest for a
lasting and honorable peace, are sought to be tied lest they agree to something
irreconcilable with the Constitution, should not be lost on the Court.
Under our constitutional set up, there cannot be any serious dispute that the
maintenance of the peace, insuring domestic tranquility and the suppression of
violence are the domain and responsibility of the executive. Now then, if it be
important to restrict the great departments of government to the exercise of their
appointed powers, it follows, as a logical corollary, equally important, that one
branch should be left completely independent of the others, independent not in the
sense that the three shall not cooperate in the common end of carrying into effect
the purposes of the constitution, but in the sense that the acts of each shall never
be controlled by or subjected to the influence of either of the branches. 50
Eloquently, Justice Brion in his dissenting opinion in Province of North Cotabato
asserted:
. . . . Where policy is involved, we are bound by our constitutional duties to leave
the question for determination by those duly designated by the Constitution the
Executive, Congress, or the people in their sovereign capacity.
In the present case, the peace and order problems of Mindanao are essentially
matters for the Executive to address, with possible participation from Congress and
the sovereign people as higher levels of policy action arise. Its search for solutions,
in the course of several presidencies, has led the Executive to the peace settlement
process. As has been pointed out repetitively in the pleadings and the oral

arguments, the latest move in the Executive's quest for peace the MOA-AD
would have not been a good deal for the country if it had materialized. This Court,
however, seasonably intervened and aborted the planned signing of the agreement.
The Executive, for its part, found it wise and appropriate to fully heed the signals
from our initial action and from the public outcry the MOA-AD generated; it
backtracked at the earliest opportunity in a manner consistent with its efforts to
avoid or minimize bloodshed while preserving the peace process. At the moment,
the peace and order problem is still with the Executive where the matter should be;
the initiative still lies with that branch of government. The Court's role, under the
constitutional scheme that we are sworn to uphold, is to allow the initiative to be
where the Constitution says it should be. We cannot and should not interfere unless
our action is unavoidably necessary because the Executive is acting beyond what is
allowable, or because it has failed to act in the way it should act, under the
Constitution and our laws.
xxx

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Rather than complicate the issues further with judicial pronouncements that may
have unforeseen or unforeseeable effects on the present fighting and on the
solutions already being applied, this Court should exercise restraint as the fears
immediately generated by a signed and concluded MOA-AD have been addressed
and essentially laid to rest. Thus, rather than pro-actively act on areas that now are
more executive than judicial, we should act with calibrated restraint along the lines
dictated by the constitutional delineation of powers. Doing so cannot be equated to
the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we
have judicially addressed the concerns posed with positive effects and we shall not
hesitate to judicially act in the future, as may be necessary, to ensure that the
integrity of our constitutional and statutory rules and standards are not
compromised. If we exercise restraint at all, it is because the best interests of the
nation and our need to show national solidarity at this point so require, in order that
the branch of government in the best position to act can proceed to act. DCaSHI
xxx

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. . . We can effectively move as we have shown in this MOA-AD affair, but let this
move be at the proper time and while we ourselves observes the limitations the
Constitution commonly impose on all branches of government in delineating their
respective roles. 51 (Emphasis supplied)
It is true that the present Constitution grants this court with the exercise of judicial
review when the case involves the determination of "grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." 52 This new feature of the 1987 Constitution
affects our political question doctrine. It does not do away with the requirement of

an actual case. The requirement of an actual case is fundamental to the nature of

the judiciary.
No less than Justice Vicente V. Mendoza implied that the rigorous requirement of an
actual case or controversy is determinative of the nature of the judiciary. Thus:
[i]nsistence on the existence of a case or controversy before the judiciary
undertakes a review of legislation gives it the opportunity, denied to the legislature,
of seeing the actual operation of the statute as it is applied to actual facts and thus
enables to it to reach sounder judgment. 53
In the recent case of Belgica, et al. v. Executive Secretary, we pointed out: 54
[b]asic in litigation raising constitutional issues is the requirement that there must
be an actual case or controversy. This Court cannot render an advisory opinion. We
assume that the Constitution binds all other constitutional departments,
instrumentalities, and organs. We are aware that in the exercise of their various
powers, they do interpret the text of the Constitution in the light of contemporary
needs that they should address. A policy that reduces this Court to an adviser for
official acts by the other departments that have not yet been done would
unnecessarily tax our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our power of judicial
review is a duty to make a final and binding construction of law. This power should
generally be reserved when the departments have exhausted any and all acts that
would remedy any perceived violation of right. The rationale that defines the extent
of our doctrines laying down exceptions to our rules on justiciability are clear: Not
only should the pleadings show a convincing violation of a right, but the impact
should be shown to be so grave, imminent, and irreparable that any delayed
exercise of judicial review or deference would undermine fundamental principles
that should be enjoyed by the party complaining or the constituents that they
legitimately represent.
The requirement of an "actual case," thus, means that the case before this Court
"involves a conflict of legal rights, an assertion of opposite legal claims susceptible
of judicial resolution; the case must not be moot or academic based on extra-legal
or other similar considerations not cognizable by a court of justice." Furthermore,
"the controversy needs to be definite and concrete, bearing upon the legal relations
of parties who are pitted against each other due to their adverse legal interests."
Thus, the adverse position of the parties must be sufficient enough for the case to
be pleaded and for this Court to be able to provide the parties the proper relief/s
prayed for.
The requirement of an 'actual case' will ensure that this Court will not issue advisory
opinions. It prevents us from using the immense power of judicial review absent a

party that can sufficiently argue from a standpoint with real and substantial
interests. 55
Regretfully, the ponencia takes inconsistent positions as to whether the petitions do
allege actual cases. On the issue of the violation of the right to health under Section
9 of the law, 56 he correctly held that the constitutional challenge is premature:
ACIESH
. . . not a single contraceptive has yet been submitted to the FDA pursuant [to the]
RH Law. It [behooves] the Court to await its determination which drugs or devices
are declared by the FDA as safe, it being the agency tasked to ensure that food and
medicines available to the public are safe for public consumption. . . . Indeed, the
various kinds of contraceptives must first be measured up to the constitutional
yardstick . . . to be determined as the case presents itself. 57 (Emphasis in the
original)
Moreover, the ponencia also correctly held that a discussion on the constitutionality
of Section 14 of the law, pertaining to the teaching of Age-and DevelopmentAppropriate Reproductive Health Education, 58 is not yet ripe for determination:
. . . any attack on the validity of Section 14 of the RH Law is premature, as the
Department of Education, Culture and Sports have yet to formulate any curriculum
on age-appropriate reproductive health education. At this point, one can only
speculate [on the] contents, manner and medium of instruction that would be used
to educate the adolescents and whether [these] would contradict the religious
beliefs of petitioners, and validate their apprehensions. . . . .
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While the Court notes the possibility that educators could raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it. 59
(Emphasis in the original)
Unfortunately, the ponencia failed to discuss how several provisions of the RH Law
became vulnerable to a facial attack, whereas other provisions must await an actual
case or controversy to pass upon its constitutionality. The ponencia explained that
the:

. . . foregoing petitions have seriously alleged that the constitutional human right to
life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of

these kindred petitions and determine if the RH Law can indeed pass constitutional
scrutiny. 60
I restate, for purposes of emphasis, parts of my disquisition on facial challenges in
my dissenting and concurring opinion in Disini v. Secretary of Justice. 61 After all,
the challenges to this present law and the Cybercrime Prevention Act of 2012 are
the public's reaction to the increasingly liberal but disturbing treatment that we
have given on the issue of rigorous analysis for the justiciability of controversies
brought before us.
The invalidation of the statute is either "on its face" or "as applied." The only
instance when a facial review of the law is not only allowed but also essential is
"when the provisions in question are so broad that there is a clear and imminent
threat that actually operates or it can be used as a prior restraint of speech." 62
In Cruz v. Secretary of Environment and Natural Resources, 63 Justice Vicente V.
Mendoza explained the difference of an "as applied" challenge from an "on its face"
challenge:
The only instance where a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression. In such instance, the overbreadth
doctrine permits a party to challenge the validity of a statute even though as
applied to him it is not unconstitutional but it might be if applied to others not
before the Court whose activities are constitutionally protected. Invalidation of the
statute "on its face" rather than "as applied" is permitted in the interest of
preventing a "chilling" effect on freedom of expression. But in other cases, even if it
is found that a provision of a statute is unconstitutional, courts will decree only
partial invalidity unless the invalid portion is so far inseparable from the rest of the
statute that a declaration of partial invalidity is not possible. 64 (Emphasis supplied)
Subsequently, in Estrada v. Sandiganbayan, 65 Justice Mendoza culled a more
extensive rule regarding facial or "on its face" challenges, thus:
[a] facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech. SaCIAE
The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative Act is . . . the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." . . . .
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might
be unconstitutional." . . . . 66 (Emphasis supplied)
Similarly, this court in Prof. David v. Pres. Macapagal-Arroyo 67 laid down guides
when a facial challenge may be properly brought before this court, thus:
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes in free speech cases, also known under the
American Law as First Amendment cases.
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Thus, claims of facial overbreadth are entertained in cases involving statutes which,
by their terms, seek to regulate only "spoken words" and again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not
free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to
be used "sparingly and only as a last resort," and is "generally disfavored;" The

reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad law's "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its
actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris, it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-byline analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists. 68 (Emphasis in the original)

A similar view was adopted by this court in Romualdez v. Hon. Sandiganbayan 69

and Spouses Romualdez v. Commission on Elections. 70 Unfortunately, in resolving
the motion for reconsideration in Spouses Romualdez v. Commission on Elections,
71 this court seemed to have expanded the scope of the application of facial
challenges. Hence:
. . . . The rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected to a facial challenge. 72
However, the basic rule was again restated in Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council: 73
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.
Justice Mendoza accurately phrased the subtitle in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to
avert the "chilling effect" on protected speech, the exercise of which should not at
all times be abridged. As reflected earlier, this rationale is inapplicable to plain
penal statutes that generally bear an "in terrorem effect" in deterring socially
harmful conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or dissuading
the exercise of constitutionally protected rights.
The Court reiterated that there are "critical limitations by which a criminal statute
may be challenged" and "underscored that an 'on-its-face' invalidation of penal
statutes . . . may not be allowed."
[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of
crimes may be hampered. No prosecution would be possible. A strong criticism
against employing a facial challenge in the case of penal statutes, if the same is
allowed, would effectively go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power may be appropriately
exercised.

A facial challenge against a penal statute is, at best, amorphous and speculative. It
would, essentially, force the court to consider third parties who are not before it. As
I have said in my opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State's ability to deal with crime. If warranted,
there would be nothing that can hinder an accused from defeating the State's power
to prosecute on a mere showing that, as applied to third parties, the penal statute is
vague or overbroad, notwithstanding that the law is clear as applied to him.
It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always
under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts as
applied to the litigants. HTDcCE
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In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases, observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment, and that claims of
facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation
that is not specifically addressed to speech or speech-related conduct. Attacks on
overly broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression." 74 (Emphasis and underscoring in the
original)
The prevailing doctrine today is that:
a facial challenge only applies to cases where the free speech and its cognates are
asserted before the court. While as a general rule penal statutes cannot be
subjected to facial attacks, a provision in a statute can be struck down as
unconstitutional when there is a clear showing that there is an imminent possibility
that its broad language will allow ordinary law enforcement to cause prior restraints
of speech and the value of that speech is such that its absence will be socially
irreparable. 75
Broken down into its elements, a facial review should only be allowed when:
First, the ground for the challenge of the provision in the statute is that it violates
freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an
interpretation that will allow prior restraints;
Fourth, the "chilling effect" is not simply because the provision is found in a penal
statute but because there can be a clear showing that there are special
circumstances which show the imminence that the provision will be invoked by law
enforcers;
Fifth, the application of the provision in question will entail prior restraints; and
Sixth, the value of the speech that will be restrained is such that its absence will be
socially irreparable. This will necessarily mean balancing between the state
interests protected by the regulation and the value of the speech excluded from
society. 76
Facial challenges can only be raised on the basis of overbreadth and not on
vagueness. Southern Hemisphere demonstrated how vagueness relates to
violations of due process rights, whereas facial challenges are raised on the basis of
overbreadth and limited to the realm of freedom of expression.
None of these petitions justify a facial review of this social legislation. The free
exercise of one's religion may be a cognate of the freedom of expression. However,
the petitions have not properly alleged the religion, the religious dogma, the actual
application of the religious dogma where a repugnancy can be shown. They have
also failed to demonstrate that the violation of the amorphous religious dogmas that
they imagine should result in the invalidation of statutory text rather than simply an
adjustment in its interpretation and in its application.
II
No Locus Standi
Besides, the consolidated cases are improper class suits that should be dismissed
outright.
A class suit is allowed under the rules 77 if those who instituted the action are found
to be sufficiently numerous and representative of the interests of all those they seek
to represent. They must be so numerous that it would be impractical to bring them
all to court or join them as parties. Lastly, a common interest in the controversy
raised must be clearly established. 78
These requirements afford protection for all those represented in the class suit
considering that this court's ruling will be binding on all of them. We should be
especially cautious when the class represented by a few in an alleged class suit is
the "entire Filipino Nation" or all the adherents of a particular religion. This court

must be convinced that the interest is so common that there can be no difference in
the positions and points of view of all that belong to that class. Anything less than
this standard will be an implied acceptance that in this important adjudication of
alleged constitutional rights, the views of a few can be imposed on the many.
In the 1908 case of Ibaes v. Roman Catholic Church, 79 13 plaintiffs filed the
complaint for themselves and on behalf of the other inhabitants of the town of
Ternate against the Roman Catholic Church for the proprietorship of an image of the
Holy Child. 80 This court held that the action could not be maintained.
It sufficiently appears from the record in this case that it is a controversy between
the Roman Catholic Church on one side and the Independent Filipino Church on the
other. That it is the purpose of the plaintiffs, if they secure possession of the image,
to place it in the chapel of the Independent Church is also very clear. What number
of the inhabitants of the town (2,460 according to the census) are members of the
Roman Catholic Church and what part are members of the Independent Filipino
Church does not appear. But it is very apparent that many of the inhabitants are
opposed to the transfer of the image from the Roman Catholic Church. Under the
circumstances, the thirteen plaintiffs do not fairly represent all of the inhabitants of
the town. Their interest and the interests of some of the others are diametrically
opposed. For this reason this action can not be maintained. 81 (Emphasis supplied)
EIcTAD
In the 1974 case of Mathay v. Consolidated Bank and Trust Co., 82 this court
affirmed the dismissal of a complaint captioned as a class suit for failure to comply
with the requisite that the parties who filed the class suit must be sufficiently
numerous and representative:
The complaint in the instant case explicitly declared that the plaintiffs-appellants
instituted the "present class suit under Section 12, Rule 3, of the Rules of Court in
behalf of CMI subscribing stockholders" but did not state the number of said CMI
subscribing stockholders so that the trial court could not infer, much less make sure
as explicitly required by the statutory provision, that the parties actually before it
were sufficiently numerous and representative in order that all interests concerned
might be fully protected, and that it was impracticable to bring such a large number
of parties before the court.
xxx

xxx

xxx

Appellants, furthermore, insisted that insufficiency of number in a class suit was not
a ground for dismissal of one action. This Court has, however, said that where it
appeared that no sufficient representative parties had been joined, the dismissal by
the trial court of the action, despite the contention by plaintiffs that it was a class
suit, was correct. 83 (Emphasis supplied)

In Re: Request of the Heirs of the Passengers of Doa Paz, 84 a class suit was filed
by 27 named plaintiffs on behalf and in representation of "the approximately 4,000
persons . . . (who also) are all close relatives and legal heirs of the passengers of the
Doa Paz." 85 This court distinguished class suits 86 from permissive joinder of
parties: 87
. . . . What makes the situation a proper case for a class suit is the circumstance
that there is only one right or cause of action pertaining or belonging in common to
many persons, not separately or severally to distinct individuals.
xxx

xxx

xxx

The other factor that serves to distinguish the rule on class suits from that of
permissive joinder of parties is, of course, the numerousness of parties involved in
the former. The rule is that for a class suit to be allowed, it is needful inter alia that
the parties be so numerous that it would be impracticable to bring them all before
the court. 88
Finding that the case was improperly brought as a class suit, this court concluded
that "it follows that the action may not be maintained by a representative few in
behalf of all the others." 89 Consequently, this court denied the authority to litigate
in the form of a class suit. 90
This ruling was again emphasized in Bulig-Bulig Kita Kamag-anak Association v.
Sulpicio Lines, Inc., 91 making the ratio decidendi in Re: Request of the Heirs of the
Passengers of Doa Paz binding precedent. 92 These cases have been cited in a
more recent jurisprudence in its discussion on the need to sufficiently represent all
interests for a class suit to prosper. 93
MVRS Publications, Inc. et al. v. Islamic Da'wah Council of the Philippines, Inc. et al.
94 emphasized how adequacy of representation in a class suit is important in fully
protecting the interests of those concerned:
In any case, respondents' lack of cause of action cannot be cured by the filing of a
class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the
deliberations, "an element of a class suit is the adequacy of representation. In
determining the question of fair and adequate representation of members of a class,
the court must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of those
made parties as it so bears to the total membership of the class; and, (c) any other
factor bearing on the ability of the named party to speak for the rest of the class.
DaAISH
The rules require that courts must make sure that the persons intervening should be
sufficiently numerous to fully protect the interests of all concerned. In the present
controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert

the interests not only of the Muslims in the Philippines but of the whole Muslim
world as well. Private respondents obviously lack the sufficiency of numbers to
represent such a global group; neither have they been able to demonstrate the
identity of their interests with those they seek to represent. Unless it can be shown
that there can be a safe guaranty that those absent will be adequately represented
by those present, a class suit, given its magnitude in this instance, would be
unavailing. 95
Class suits require that there is a possibility that those represented can affirm that
their interests are properly raised in a class suit. The general rule must be that they
be real and existing. In constitutional adjudication, this court must approach class
suits with caution; otherwise, future generations or an amorphous class will be
bound by a ruling which they did not participate in.
Not all these elements for a proper class suit are present in the petitions filed in
these cases.
Petitioners James M. Imbong and Lovely-Ann C. Imbong, for themselves and in
behalf of their minor children, Lucia Carlos Imbong and Bernadette Carlos Imbong,
and Magnificat Child Development Center, Inc. 96 filed their petition "as parents and
as a class suit in representation of other parents and individuals similarly situated."
97 They alleged that they are "Catholics who have deeply-held religious beliefs
upon which Faith their conscience is rooted against complying with the mandates of
the Act." 98
Four persons and a juridical entity cannot be considered as sufficiently numerous
and representative of the interests of "all other parents and individuals similarly
situated."
Petitioners Alliance for the Family Foundation, Inc. (ALFI), represented by its
President, Maria Conception S. Noche, Spouses Reynaldo S. Luistro & Rosie B.
Luistro, et al. 99 invoked Oposa v. Factoran, Jr. in filing their petition "on behalf of all
generations of Filipinos yet unborn, who are in danger of being deprived of the right
to life by R.A. No. 10354." 100
The required common interest in the controversy can neither be determined nor
proven in this case if those to be represented are yet to be born.
It is true that in Oposa v. Factoran, Jr., 101 intergenerational suits were introduced in
our jurisdiction. However, this case must not be abused out of its context. Oposa is
a novel case involving an environmental class suit. This environmental case
involved minor petitioners who filed a complaint for the cancellation of all existing
timber license agreements in the country. They were allowed to sue on behalf of
future generations on the ground of "intergenerational responsibility," in relation to
the constitutional right to a balanced and healthful ecology. 102 The state of our

ecology will certainly affect future generations regardless of ideology, philosophy or

standpoints.
On the other hand, those who will only be born in the future may have different
views regarding the various policy approaches on responsible parenthood and
reproductive health. Hence, the commonality of the interest that will justify the
presumption that the legal positions will be the same is not present.
In its petition, Task Force for Family and Life Visayas, Inc. 103 alleged that it is "an
association of men and women who have committed themselves to the protection
of family and life, sanctity of marriage . . . ." 104 Its members are "Roman Catholics
by faith" and are "spread throughout the Visayan region." 105 The petitioners
collectively seek relief "from the impending threat against their children, their
respective families and the entire Filipino nation, their religious freedom and other
constitutional rights they foresee and make known in this petition." 106
Petitioners, by no stretch of the imagination, cannot be representative of the
interests of "the entire Filipino nation." Not all Filipinos are Roman Catholics. Not all
Filipinos are from the Visayas. Certainly not all Filipinos have a common interest that
will lead to a common point of view on the constitutionality of the various provisions
of the RH law.
Serve Life Cagayan de Oro City, Inc., represented by Dr. Nestor B. Lumicao, M.D. as
President and in his personal capacity, Rosevale Foundation, Inc., represented by Dr.
Rodrigo M. Alenton, M.D. as member of the school board and in his personal
capacity, Rosemarie R. Alenton, Imelda G. Ibarra, CPA, Lovenia P. Naces, Ph.D.,
Anthony G. Nagac, Earl Anthony C. Gambe, and Marlon I. Yap also filed a petition
consolidated with these cases. 107 DTaSIc
The individual petitioners alleged they are medical practitioners, members of the
bar, educators, and various professionals who filed this petition "as parents and as a
class suit in representation of other parents and individuals similarly situated." 108
They are "devout and practicing Catholics whose religious beliefs find the
mandatory provisions of the RH law obnoxious and unconscionable." 109
The basis for representing Catholics because their religious beliefs find the RH law
obnoxious and unconscionable is not shared by all Catholics. Again, the class is
improperly defined and could not withstand judicial scrutiny. Their views may not be
representative of the entire class they seek to represent.
Spouses Francisco S. Tatad and Maria Fenny C. Tatad and Alan F. Paguia alleged that
they are representing, themselves, their posterity, and the rest of Filipino posterity.
110 They instituted their action "in their capacity as concerned citizens, taxpayers,
parents, grandparents, biological ancestors of all their descendants, born and
unborn, conceived or not yet conceived, up to their remotest generation in the
future within the context of Filipino posterity under the 1987 Constitution." 111

Three individual petitioners cannot be considered as sufficiently numerous and

representative of the interests "of the rest of Filipino posterity." There is no showing
that future Filipinos will accept their point of view. No one can be certain of the
interest of Filipinos in the future. No one can be certain that even their descendants
will agree with their position. Consequently, a common interest on the controversy
with future Filipinos cannot be established.
In fact, petitioners Couples for Christ Foundation, Inc., et al. 112 confirmed the
existence of divergent opinions on the RH law among Filipinos when it stated that
"the Filipino people, of whom majority are Catholics, have a strong interest in the
final resolution of the issues on reproductive health, which has divided the nation
for years." 113
Pro-Life Philippines Foundation, Inc., represented by Lorna Melegrito as Executive
Director and in her personal capacity, Joselyn B. Basilio, Robert Z. Cortes, Ariel A.
Crisostomo, Jeremy I. Gatdula, Cristina A. Montes, Raul Antonio A. Nidot, Winston
Conrad B. Padojinog, and Rufino L. Policarpio III also filed a petition. 114
The individual petitioners instituted this action "as parents, and as a class suit in
representation of other parents and individuals similarly situated." 115 They alleged
that the RH law is "oppressive, unjust, confiscatory and discriminatory specifically
against herein petitioners as parents, professionals, and faithful of the Catholic
Church." 116
Again, there is no showing that these individual petitioners are sufficiently
numerous and representative of the interests of those they seek to represent.
The rationale for the dismissal of actions in these types of class suits is far from
merely procedural. Since petitioners claim representation, the argument that they
bring as well as the finality of the judgment that will be rendered will bind their
principals. An improperly brought class suit, therefore, will clearly violate the due
process rights of all those in the class. In these cases, certainly the entire Filipino
nation, all the descendants of petitioners, all Catholics, and all the unborn will be
bound even though they would have agreed with respondents or the intervenors.
HAICTD
Being improperly brought as class suits, these petitions should be dismissed.
Disini v. Secretary of Justice
Sereno
Separate Opinions
SERENO, C.J., concurring and dissenting:

The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are
enacted with due deference to rights.
Justice Isagani A. Cruz 1
When the two other branches of government transgress their inherent powers, often
out of a well-intentioned zeal that causes an imbalance between authority and
liberty, it is the Court's solemn duty to restore the delicate balance that has been
upset. This is the difficult task before us now, involving as it does our power of
judicial review over acts of a coequal branch. cAECST
The task is complicated by the context in which this task is to be discharged: a
rapidly evolving information and communications technology, which has been an
enormous force for good as well as for evil. Moreover, the Court is forced to grapple
with the challenge of applying, to the illimitable cyberspace, legal doctrines that
have heretofore been applied only to finite physical space. Fortunately, we have the
Constitution as our North Star as we try to navigate carefully the uncharted terrain
of cyberspace as the arena of the conflict between fundamental rights and law
enforcement.
I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime
Prevention Act on the real-time collection of traffic data and Section 19 on the
restriction or blocking of access to computer data. I also adopt the ponencia's
discussion of Sections 12 and 19. I write this Separate Opinion, however, to explain
further why real-time collection of traffic data may be indispensable in certain
cases, as well as to explain how the nature of traffic data per se undercuts any
expectation of privacy in them.
I also concur with the ponencia's partial invalidation of Section 4 (c) (4) on libel
insofar as it purports to create criminal liability on the part of persons who receive a
libelous post and merely react to it; and of Section 7, in so far as it applies to libel.
TSEAaD
However, I dissent from the ponencia's upholding of Section 6 as not
unconstitutional in all its applications. I find Section 6 to be unconstitutional insofar
as it applies to cyberlibel because of its "chilling effect." Hence, I am writing this
Separate Opinion also to explain my dissent on this issue. EITcaD
I find the rest of the constitutional challenges not proper for a pre-enforcement
judicial review and therefore dismissible.
I.
THIS COURT MAY EMPLOY A PRE-ENFORCEMENT
JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.

As distinguished from the general notion of judicial power, the power of judicial
review especially refers to both the authority and the duty of this Court to
determine whether a branch or an instrumentality of government has acted beyond
the scope of the latter's constitutional powers. 2 It includes the power to resolve
cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. 3 This power, first verbalized in the seminal
case Marbury v. Madison, 4 has been exercised by the Philippine Supreme Court
since 1902. 5 The 1936 case Angara v. Electoral Commission exhaustively discussed
the concept as follows: 6 ISCcAT
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution.
Each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. . . . .
And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the Constitution.
DASCIc
xxx

xxx

xxx

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions
embodied in our Constitution are real as they should be in any living constitution. In
the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of
its historical origin and development there, has been set at rest by popular
acquiescence for a period of more than one and a half centuries. In our case, this

moderating power is granted, if not expressly, by clear implication from section 2 of

article VIII of our Constitution. aTCADc
The Constitution is a definition of the powers of government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has provided
for the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial review under the
Constitution. (Emphases supplied) ETDSAc
The power of judicial review has since been strengthened in the 1987 Constitution,
extending its coverage to the determination of whether 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. 7 The expansion made the political
question doctrine "no longer the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions
from judicial inquiry or review." 8 Thus, aside from the test of constitutionality, this
Court has been expressly granted the power and the duty to examine whether the
exercise of discretion in those areas that are considered political questions was
attended with grave abuse. 9 IHEaAc
This moderating power of the Court, however, must be exercised carefully, and only
if it cannot be feasibly avoided, as it involves the delicate exercise of pronouncing
an act of a branch or an instrumentality of government unconstitutional, at the risk
of supplanting the wisdom of the constitutionally appointed actor with that of the
judiciary. 10 It cannot be overemphasized that our Constitution was so incisively
designed that the different branches of government were made the respective
experts in their constitutionally assigned spheres. 11 Hence, even as the Court
dutifully exercises its power of judicial review to check in this case, the legislature
it must abide by the strict requirements of its exercise under the Constitution.
Indeed, "[a] ruling of unconstitutionality frustrates the intent of the elected
representatives of the people." 12
Demetria v. Alba 13 and Francisco v. House of Representatives 14 cite the "seven
pillars" of the limitations of the power of judicial review, enunciated in the
concurring opinion of U.S. Supreme Court Justice Louis Brandeis in Ashwander v.
Tennessee Valley Authority 15 as follows: cATDIH
1.
The Court will not pass upon the constitutionality of legislation in a friendly,
non-adversary, proceeding, declining because to decide such questions "is

legitimate only in the last resort, and as a necessity in the determination of real,
earnest and vital controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could transfer to the
courts an inquiry as to the constitutionality of the legislative act." . . . .
2.
The Court will not "anticipate a question of constitutional law in advance of
the necessity of deciding it." . . . . "It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a decision of the
case."
3.
The Court will not "formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied." . . . . acCTSE
4.
The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the
case may be disposed of. This rule has found most varied application. Thus, if a case
can be decided on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the Court will decide
only the latter. . . . .
5.
The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. . . . . Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge by a
public official interested only in the performance of his official duty will not be
entertained. . . . . ADEacC
6.
The Court will not pass upon the constitutionality of a statute at the instance
of one who has availed himself of its benefits. . . . .
7.
"When the validity of an act of the Congress is drawn in question, and even if
a serious doubt of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible by which
the question may be avoided." (Citations omitted, emphases supplied) DHIaTS
These are specific safeguards laid down by the Court when it exercises its power of
judicial review. Thus, as a threshold condition, the power of judicial review may be
invoked only when the following four stringent requirements are satisfied: (a) there
must be an actual case or controversy; (b) petitioners must possess locus standi; (c)
the question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case. 16
Specifically focusing on the first requisite, it necessitates that there be an existing
case or controversy that is appropriate or ripe for determination as opposed to a
case that is merely conjectural or anticipatory. 17 The case must involve a definite
and concrete issue concerning real parties with conflicting legal rights and opposing

legal claims, admitting of a specific relief through a decree conclusive in nature. 18

The "ripeness" for adjudication of the controversy is generally treated in terms of
actual injury to the plaintiff. 19 Hence, a question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the individual challenging it.
The case should not equate with a mere request for an opinion or an advice on what
the law would be upon an abstract, hypothetical, or contingent state of facts. 20 As
explained in Angara v. Electoral Commission: 21 HICEca
[The] power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the
executive and legislative departments of the government. (Emphases supplied)
According to one of the most respected authorities in American constitutional law,
Professor Paul A. Freund, the actual case or controversy requirement is a crucial
restraint on the power of unelected judges to set aside the acts of the people's
representative to Congress. 22 Furthermore, he explains: 23 cAECST
The rules of "case and controversy" can be seen as the necessary corollary of this
vast power necessary for its wise exercise and its popular acceptance. By
declining to give advisory opinions, the Court refrains from intrusion into the
lawmaking process. By requiring a concrete case with litigants adversely affected,
the Court helps itself to avoid premature, abstract, ill-informed judgments. By
placing a decision on a non-constitutional ground whenever possible, the Court
gives the legislature an opportunity for sober second thought, an opportunity to
amend the statute to obviate the constitutional question, a chance to exercise that
spirit of self-scrutiny and self-correction which is the essence of a successful
democratic system. (Emphases supplied) HTScEI
While the actual controversy requirement has been largely interpreted in the light of
the implications of the assailed law vis--vis the legally demandable rights of real
parties and the direct injury caused by the assailed law, we have also exceptionally
recognized the possibility of lodging a constitutional challenge sans a pending case
involving a directly injured party. In Southern Hemisphere Engagement Network, Inc.
v. Anti-Terrorism Council, 24 we conceded the possibility of a pre-enforcement
judicial review of a penal statute, so long as there is a real and credible threat of
prosecution involving the exercise of a constitutionally protected conduct or activity.
25 We noted that the petitioners therein should not be required to expose
themselves to criminal prosecution before they could assail the constitutionality of a

statute, especially in the face of an imminent and credible threat of prosecution. 26

cHCIEA
On 5 February 2013, this Court extended indefinitely the temporary restraining
order enjoining the government from implementing and enforcing the Cybercrime
Prevention Act of 2012. As the assailed law is yet to be enforced, I believe that in
order to give due course to the Petitions, we would have to test their qualification
for pre-enforcement judicial review of the assailed law and its provisions.
In discussing the requirements of a pre-enforcement judicial review, we refer to our
ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial
review of the assailed provisions of the Human Security Act of 2007, because
petitioners failed to show that the law forbade them from exercising or performing a
constitutionally protected conduct or activity that they sought to do. We also
explained that the obscure and speculative claims of the petitioners therein that
they were being subjected to sporadic "surveillance" and tagged as "communist
fronts" were insufficient to reach the level of a credible threat of prosecution that
would satisfy the actual-controversy requirement. Thus, from the facts they had
shown, we ruled that the Court was merely "being lured to render an advisory
opinion, which [was] not its function." 27 HTCISE
We then drew a distinction between the facts in Southern Hemisphere and those in
Holder v. Humanitarian Law Project, a case decided by the United States Supreme
Court. We noted that in Holder, a pre-enforcement judicial review of the assailed
criminal statute was entertained because the plaintiffs therein had successfully
established that there was a genuine threat of imminent prosecution against them,
thereby satisfying the actual-controversy requirement. The case concerned a new
law prohibiting the grant of material support or resources to certain foreign
organizations engaged in terrorist activities. Plaintiffs showed that they had been
providing material support to those declared as foreign terrorist organizations; and
that, should they continue to provide support, there would be a credible threat of
prosecution against them pursuant to the new law. The plaintiffs therein insisted
that they only sought to facilitate the lawful, nonviolent purposes of those groups
such as the latter's political and humanitarian activities and that the materialsupport law would prevent the plaintiffs from carrying out their rights to free speech
and to association. Based on the foregoing considerations, the U.S. Supreme Court
concluded that the claims of the plaintiffs were suitable for judicial review, as there
was a justiciable case or controversy. STECDc
We may thus cull from the foregoing cases that an anticipatory petition assailing the
constitutionality of a criminal statute that is yet to be enforced may be exceptionally
given due course by this Court when the following circumstances are shown: (a) the
challenged law or provision forbids a constitutionally protected conduct or activity
that a petitioner seeks to do; (b) a realistic, imminent, and credible threat or danger
of sustaining a direct injury or facing prosecution awaits the petitioner should the

prohibited conduct or activity be carried out; and (c) the factual circumstances
surrounding the prohibited conduct or activity sought to be carried out are real, not
hypothetical and speculative, and are sufficiently alleged and proven. 28 It is only
when these minimum conditions are satisfied can there be a finding of a justiciable
case or actual controversy worthy of this Court's dutiful attention and exercise of
pre-enforcement judicial review. Furthermore, since the issue of the propriety of
resorting to a pre-enforcement judicial review is subsumed under the threshold
requirement of actual case or controversy, we need not go through the merits at
this stage. Instead, the determination of whether or not to exercise this power must
hinge solely on the allegations in the petition, regardless of the petitioner's
entitlement to the claims asserted. cda
A review of the petitions before us shows that, save for the Disini Petition, 29 all
petitions herein have failed to establish that their claims call for this Court's
exercise of its power of pre-enforcement judicial review.
Petitioners allege that they are users of various information and communications
technologies (ICT) as media practitioners, journalists, lawyers, businesspersons,
writers, students, Internet and social media users, and duly elected legislators.
However, except for the Petition of Disini, none of the other petitioners have been
able to show that they are facing an imminent and credible threat of prosecution or
danger of sustaining a direct injury. Neither have they established any real, factual
circumstances in which they are at risk of direct injury or prosecution, should those
acts continue to be carried out. aEAcHI
They have simply posed hypothetical doomsday scenarios and speculative
situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of
digital and personal information by the government; or a wanton taking down of
legitimate websites. 30 Others have made outright legal queries on how the law
would be implemented in various circumstances, such as when a person
disseminates, shares, affirms, "likes," "retweets," or comments on a potentially
libelous article. 31 A considerable number of them have merely raised legal
conclusions on the implication of the new law, positing that the law would per se
prevent them from freely expressing their views or comments on intense national
issues involving public officials and their official acts. 32 While these are legitimate
concerns of the public, giving in to these requests for advisory opinion would
amount to an exercise of the very same function withheld from this Court by the
actual controversy requirement entrenched in Section 1, Article III of our
Constitution. aSEHDA
The Petition of Disini is the only pleading before the Court that seems to come close
to the actual-controversy requirement under the Constitution. What sets the Petition
apart is that it does not merely allege that petitioners therein are ICT users who
have posted articles and blogs on the Internet. The Petition also cites particular
blogs or online articles of one of the petitioners who was critical of a particular

legislator. 33 Furthermore, it refers to a newspaper article that reported the

legislator's intent to sue under the new law, once it takes effect. The pertinent
portion of the Petition reads: 34
5.
Petitioners are all users of the Internet and social media. Petitioner Ernesto
Sonido, Jr. ("Petitioner Sonido"), in particular, maintains the blog "Baratillo
Pamphlet" over the Internet. DTAHSI
6.
On August 22, 2012 and September 7, 2012, Petitioner Sonido posted 2 blogs
entitled "Sotto Voce: Speaking with Emphasis" and "Sotto and Lessons on Social
Media" in which he expressed his opinions regarding Senator Vicente "Tito" Sotto
III's ("Senator Sotto") alleged plagiarism of online materials for use in his speech
against the Reproductive Health Bill.
7.
On August 30, 2012, Senator Sotto disclosed that the Cybercrime Bill was
already approved by the Senate and the House of Representatives and was merely
awaiting the President's signature. He then warned his critics that once signed into
law, the Cybercrime Bill will penalize defamatory statements made online. To quote
Senator Sotto: IHcTDA
"Walang ginawa yan [internet users] umaga, hapon, nakaharap sa computer, target
nuon anything about the [Reproductive Health] Bill. Ganun ang strategy nun and
unfortunately, di panapipirmahan ang Cybercrime bill. Pwede na sana sila tanungin
sa pagmumura at pagsasabi ng di maganda. Sa Cybercrime bill, magkakaroon ng
accountability sa kanilang pinagsasabi, penalties na haharapin, same penalties as
legitimate journalists, anything that involves the internet," he said.
8.
The threat of criminal prosecution that was issued by Senator Sotto affected
not only bloggers like Petitioner Sonido but all users of the Internet and social media
as the other Petitioners herein who utilize online resources to post comments and
express their opinions about social issues. ECTIcS
9.
The President finally signed the Cybercrime Act into law on September 12,
2012.
10.
With the passage of the Cybercrime Act, the threat that was issued by
Senator Sotto against his online critics has become real. (Emphases and italics
supplied) CAIaHS
The Petition of Disini appears to allege sufficient facts to show a realistic, imminent,
and credible danger that at least one of its petitioners may sustain a direct injury
should respondents proceed to carry out the prohibited conduct or activity. First,
there was a citation not only of a particular blog, but also of two potentially libelous
entries in the blog. Second, the plausibly libelous nature of the articles was
specifically described. Third, the subject of the articles, Senator Vicente Sotto III,
was alleged to have made threats of using the assailed statute to sue those who

had written unfavorably about him; a verbatim quote of the legislator's threat was
reproduced in the Petition. Fourth, the person potentially libeled is a nationally
elected legislator.
This combination of factual allegations seems to successfully paint a realistic
possibility of criminal prosecution under Section 4 (c) (4) of a specific person under
the assailed law. Consequently, there is now also a possibility of the writer being
penalized under Section 6, which raises the penalty for crimes such as libel by one
degree when committed through ICT. The alleged facts would also open the
possibility of his being charged twice under Section 4 (c) (4) and Article 353 of the
Revised Penal Code by virtue of Section 7. Furthermore, since he might become a
suspect in the crime of libel, his online activities might be in danger of being
investigated online by virtue of Section 12 or his access to computer data might be
restricted under Section 19. TSHcIa
Therefore, it is submitted that the Court must limit its discussion of the substantive
merits of the cases to the Petition of Disini, at the most and only on the provisions
questioned therein. aTSEcA
II.
PARTICULAR PROVISIONS OF THE
CYBERCRIME PREVENTION ACT
MAY BE FACIALLY INVALIDATED.
A facial challenge refers to the call for the scrutiny of an entire law or provision by
identifying its flaws or defects, not only on the basis of its actual operation on the
attendant facts raised by the parties, but also on the assumption or prediction that
the very existence of the law or provision is repugnant to the Constitution. 35 This
kind of challenge has the effect of totally annulling the assailed law or provision,
which is deemed to be unconstitutional per se. The challenge is resorted to by
courts, especially when there is no instance to which the law or provision can be
validly applied. 36 TADCSE
In a way, a facial challenge is a deviation from the general rule that Courts should
only decide the invalidity of a law "as applied" to the actual, attending
circumstances before it. 37 An as-applied challenge refers to the localized
invalidation of a law or provision, limited by the factual milieu established in a case
involving real litigants who are actually before the Court. 38 This kind of challenge is
more in keeping with the established canon of adjudication that "the court should
not form a rule of constitutional law broader than is required by the precise facts to
which it is applied." 39 Should the petition prosper, the unconstitutional aspects of
the law will be carved away by invalidating its improper applications on a case-tocase basis. 40 For example, in Ebralinag v. Division of Superintendent of Schools of

Cebu, 41 the Court exempted petitioner-members of the religious group Jehovah's

Witness from the application of the Compulsory Flag Ceremony in Educational
Institutions Act on account of their religious beliefs. The Court ruled that the law
requiring them to salute the flag, sing the national anthem, and recite the patriotic
pledge cannot be enforced against them at the risk of expulsion, because the law
violated their freedom of religious expression. In effect, the law was deemed
unconstitutional insofar as their religious beliefs were concerned. CIaHDc
Because of its effect as a total nullification, the facial invalidation of laws is deemed
to be a "manifestly strong medicine" that must be used sparingly and only as a last
resort. 42 The general disfavor towards it is primarily due to the "combination of the
relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes." 43 Claims of facial invalidity "raise the risk
of 'premature interpretation of statutes on the basis of factually barebones
records.'" 44
A.

Section 6 Increase of Penalty by

One Degree
Section 6 was worded to apply to all existing penal laws in this jurisdiction. Due to
the sheer extensiveness of the applicability of this provision, I believe it unwise to
issue a wholesale facial invalidation thereof, especially because of the insufficiency
of the facts that would allow the Court to make a conclusion that the provision has
no valid application. DHEaTS
Alternatively, the discussion can be limited to the allegations raised in the Petition
of Disini concerning the right to free speech. The Petition asserts that Section 6 (on
the increase of penalty by one degree), in conjunction with the provision on
cyberlibel, has the combined chilling effect of curtailing the right to free speech. The
Petition posits that the law "imposes heavier penalties for online libel than paperbased libel" in that the imposable penalty for online libel is now increased from
prisin correccional in its minimum and medium periods (6 months and 1 day to 4
years and 2 months) to prisin mayor in its minimum and medium periods (6 years
and 1 day to 10 years). 45 HCTEDa
The ponencia correctly holds that libel is not a constitutionally protected conduct. It
is also correct in holding that, generally, penal statutes cannot be invalidated on the
ground that they produce a "chilling effect," since by their very nature, they are
intended to have an in terrorem effect (benign chilling effect) 46 to prevent a
repetition of the offense and to deter criminality. 47 The "chilling effect" is therefore
equated with and justified by the intended in terrorem effect of penal provisions.
cEaACD

This does not mean, however, that the Constitution gives Congress the carte
blanche power to indiscriminately impose and increase penalties. While the
determination of the severity of a penalty is a prerogative of the legislature, when
laws and penalties affect free speech, it is beyond question that the Court may
exercise its power of judicial review to determine whether there has been a grave
abuse of discretion in imposing or increasing the penalty. The Constitution's
command is clear: "No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances." Thus, when Congress enacts a
penal law affecting free speech and accordingly imposes a penalty that is so
discouraging that it effectively creates an invidious chilling effect, thus impeding the
exercise of speech and expression altogether, then there is a ground to invalidate
the law. In this instance, it will be seen that the penalty provided has gone beyond
the in terrorem effect needed to deter crimes and has thus reached the point of
encroachment upon a preferred constitutional right. I thus vote to facially invalidate
Section 6 insofar as it applies to the crime of libel.
As will be demonstrated below, the confluence of the effects of the increase in
penalty under this seemingly innocuous provision, insofar as it is applied to libel,
will practically result in chilling the right of the people to free speech and
expression. TIaCcD
Section 6 creates an additional in
terrorem effect on top of that
already created by Article 355 of
the Revised Penal Code
The basic postulate of the classical penal system on which our Revised Penal Code
is based is that humans are rational and calculating beings who guide their actions
by the principles of pleasure and pain. 48 They refrain from criminal acts if
threatened with punishment sufficient to cancel the hope of possible gain or
advantage in committing the crime. 49 This consequence is what is referred to as
the in terrorem effect sought to be created by the Revised Penal Code in order to
deter the commission of a crime. 50 Hence, in the exercise of the people's freedom
of speech, they carefully decide whether to risk publishing materials that are
potentially libelous by weighing the severity of the punishment if and when the
speech turns out to be libelous against the fulfillment and the benefits to be
gained by them. cEAHSC
Our Revised Penal Code increases the imposable penalty when there are attending
circumstances showing a greater perversity or an unusual criminality in the
commission of a felony. 51 The intensified punishment for these so-called
aggravating circumstances is grounded on various reasons, which may be

categorized into (1) the motivating power itself, (2) the place of commission, (3) the
means and ways employed, (4) the time, or (5) the personal circumstances of the
offender or of the offended party. 52 Based on the aforementioned basic postulate
of the classical penal system, this is an additional in terrorem effect created by the
Revised Penal Code, which targets the deterrence of a resort to greater perversity or
to an unusual criminality in the commission of a felony. AaHTIE
Section 4 (c) (4) of the Cybercrime Prevention Act expressly amended Article 355 of
the Revised Penal Code, thereby clarifying that the use of a "computer system or
any other similar means" is a way of committing libel. On the other hand, Section 6
of the Cybercrime Prevention Act introduces a qualifying aggravating circumstance,
which reads:
SEC. 6.
All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended, and
special laws, as the case may be. (Emphases supplied) DTAHEC
A perfunctory application of the aforementioned sections would thus suggest the
amendment of the provision on libel in the Revised Penal Code, which now appears
to contain a graduated scale of penalties as follows:
ARTICLE 355.
Libel by Means Writings or Similar Means. A libel committed
by means of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prisin correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may
be brought by the offended party.
[Libel committed by, through and with the use of a computer system or any other
similar means which may be devised in the future shall be punished by 53 prisin
correccional in its maximum period to prisin mayor in its minimum period].
(Emphases supplied) TAacCE
Section 6 effectively creates an additional in terrorem effect by introducing a
qualifying aggravating circumstance: the use of ICT. This additional burden is on top
of that already placed on the crimes themselves, since the in terrorem effect of the
latter is already achieved through the original penalties imposed by the Revised
Penal Code. Consequently, another consideration is added to the calculation of
penalties by the public. It will now have to weigh not only whether to exercise
freedom of speech, but also whether to exercise this freedom through ICT. ATICcS
One begins to see at this point how the exercise of freedom of speech is clearly
burdened. The Court can take judicial notice of the fact that ICTs are fast becoming

the most widely used and accessible means of communication and of expression.
Educational institutions encourage the study of ICT and the acquisition of the
corresponding skills. Businesses, government institutions and civil society
organizations rely so heavily on ICT that it is no exaggeration to say that, without it,
their operations may grind to a halt. News organizations are increasingly shifting to
online publications, too. The introduction of social networking sites has increased
public participation in socially and politically relevant issues. In a way, the Internet
has been transformed into "freedom parks." Because of the inextricability of ICT
from modern life and the exercise of free speech and expression, I am of the opinion
that the increase in penalty per se effectively chills a significant amount of the
exercise of this preferred constitutional right. ICcaST
The chill does not stop there. As will be discussed below, this increase in penalty
has a domino effect on other provisions in the Revised Penal Code thereby further
affecting the public's calculation of whether or not to exercise freedom of speech. It
is certainly disconcerting that these effects, in combination with the increase in
penalty per se, clearly operate to tilt the scale heavily against the exercise of
freedom of speech.
The increase in penalty also
results in the imposition
of harsher accessory
penalties.
Under the Revised Penal Code, there are accessory penalties that are inherent in
certain principal penalties. Article 42 thereof provides that the principal (afflictive)
penalty of prisin mayor carries with it the accessory penalty of temporary absolute
disqualification. According to Article 30, this accessory penalty shall produce the
following effects: ISHaCD
1.
The deprivation of the public offices and employments which the offender
may have held, even if conferred by popular election.
2.
The deprivation of the right to vote in any election for any popular elective
office or to be elected to such office.
3.
The disqualification for the offices or public employments and for the exercise
of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this article shall last during the term of the sentence.
DCATHS

4.
The loss of all right to retirement pay or other pension for any office formerly
held. (Emphases supplied)
Furthermore, the accessory penalty of perpetual special disqualification from the
right of suffrage shall be meted out to the offender. Pursuant to Article 32, this
penalty means that the offender shall be perpetually deprived of the right (a) to
vote in any popular election for any public office; (b) to be elected to that office; and
(c) to hold any public office. 54 This perpetual special disqualification will only be
wiped out if expressly remitted in a pardon. aAHTDS
On the other hand, Article 43 provides that when the principal (correctional) penalty
of prisin correccional is meted out, the offender shall also suffer the accessory
penalty of suspension from public office and from the right to follow a profession or
calling during the term of the sentence. While the aforementioned principal penalty
may carry with it the accessory penalty of perpetual special disqualification from
the right of suffrage, it will only be imposed upon the offender if the duration of
imprisonment exceeds 18 months.
Before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355
of the Revised Penal Code, even if committed by means of ICT, is prisin
correccional in its minimum and medium periods. Under Section 6 of the Cybercrime
Prevention Act, the imposable penalty for libel qualified by ICT is now increased to
prisin correccional in its maximum period to prisin mayor in its minimum period.
55 Consequently, it is now possible for the above-enumerated harsher accessory
penalties for prisin mayor to attach depending on the presence of mitigating
circumstances. EcTCAD
Hence, the public will now have to factor this change into their calculations, which
will further burden the exercise of freedom of speech through ICT. ETIDaH
The increase in penalty neutralizes
the full benefits of the law on
probation, effectively threatening
the public with the guaranteed
imposition of imprisonment and
the accessory penalties thereof.
Probation 56 is a special privilege granted by the State to penitent, qualified
offenders who immediately admit to their liability and thus renounce the right to
appeal. In view of their acceptance of their fate and willingness to be reformed, the
State affords them a chance to avoid the stigma of an incarceration record by
making them undergo rehabilitation outside prison.

Section 9 of Presidential Decree No. (P.D.) 968, as amended otherwise known as

the Probation Law provides as follows:
Sec. 9.
Disqualified Offenders. The benefits of this Decree shall not be
extended to those:
(a)
sentenced to serve a maximum term of imprisonment of more than six years;
DSIaAE
(b)
convicted of subversion or any crime against the national security or the
public order;
(c)
who have previously been convicted by final judgment of an offense punished
by imprisonment of not less than one month and one day and/or a fine of not less
than Two Hundred Pesos;
(d)

who have been once on probation under the provisions of this Decree; and

(e)
who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to Section 33 hereof. (Emphasis supplied)
HAISEa
Pursuant to Article 355 of the Revised Penal Code, libel is punishable by prisin
correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and
medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods.
However, in the light of the increase in penalty by one degree under the Cybercrime
Prevention Act, libel qualified by the use of ICT is now punishable by prisin
correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to
prisin mayor in its minimum period (from 6 years and 1 day to 8 years). 57 This
increased penalty means that if libel is committed through the now commonly and
widely used means of communication, ICT, libel becomes a non-probationable
offense.
One of the features of the Probation Law is that it suspends the execution of the
sentence imposed on the offender. 58 In Moreno v. Commission on Elections, 59 we
reiterated our discussion in Baclayon v. Mutia 60 and explained the effect of the
suspension as follows: ETHIDa
In Baclayon v. Mutia, the Court declared that an order placing defendant on
probation is not a sentence but is rather, in effect, a suspension of the imposition of
sentence. We held that the grant of probation to petitioner suspended the
imposition of the principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage.
We thus deleted from the order granting probation the paragraph which required
that petitioner refrain from continuing with her teaching profession. IcSEAH

Applying this doctrine to the instant case, the accessory penalties of suspension
from public office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, attendant to the penalty
of arresto mayor in its maximum period to prisin correccional in its minimum
period imposed upon Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of
suspension from public office is put on hold for the duration of the probation.
(Emphases supplied) STIHaE
It is not unthinkable that some people may risk a conviction for libel, considering
that they may avail themselves of the privilege of probation for the sake of
exercising their cherished freedom to speak and to express themselves. But when
this seemingly neutral technology is made a qualifying aggravating circumstance to
a point that a guaranteed imprisonment would ensue, it is clear that the in terrorem
effect of libel is further magnified, reaching the level of an invidious chilling effect.
The public may be forced to forego their prized constitutional right to free speech
and expression in the face of as much as eight years of imprisonment, like the
sword of Damocles hanging over their heads.
Furthermore, it should be noted that one of the effects of probation is the
suspension not only of the penalty of imprisonment, but also of the accessory
penalties attached thereto. Hence, in addition to the in terrorem effect supplied by
the criminalization of a socially intolerable conduct and the in terrorem effect of an
increase in the duration of imprisonment in case of the presence of an aggravating
circumstance, the Revised Penal Code threatens further 61 by attaching accessory
penalties to the principal penalties. ITScAE
Section 6 increases the
prescription periods for the crime
of cyberlibel and its penalty to 15
years.
Crimes and their penalties prescribe. The prescription of a crime refers to the loss or
waiver by the State of its right to prosecute an act prohibited and punished by law.
62 It commences from the day on which the crime is discovered by the offended
party, the authorities or their agents. 63 On the other hand, the prescription of the
penalty is the loss or waiver by the State of its right to punish the convict. 64 It
commences from the date of evasion of service after final sentence. Hence, in the
prescription of crimes, it is the penalty prescribed by law that is considered; in the
prescription of penalties, it is the penalty imposed. 65 IDCcEa

By setting a prescription period for crimes, the State by an act of grace surrenders
its right to prosecute and declares the offense as no longer subject to prosecution
after a certain period. 66 It is an amnesty that casts the offense into oblivion and
declares that the offenders are now at liberty to return home and freely resume
their activities as citizens. 67 They may now rest from having to preserve the proofs
of their innocence, because the proofs of their guilt have been blotted out. 68
The Revised Penal Code sets prescription periods for crimes according to the
following classification of their penalties:
ARTICLE 90. Prescription of Crimes. Crimes punishable by death, reclusin
perpetua or reclusin temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five years.
TCEaDI
The crime of libel or other similar offenses shall prescribe in one year.
The offenses of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one the highest penalty shall be made
the basis of the application of the rules contained in the first, second and third
paragraphs of this article. (Emphases supplied)
On the other hand, Article 92 on the prescription of penalties states:
ARTICLE 92. When and How Penalties Prescribe. The penalties imposed by final
sentence prescribe as follows:
1.

Death and reclusin perpetua, in twenty years;

2.

Other afflictive penalties, in fifteen years;

3.
Correctional penalties, in ten years; with the exception of the penalty of
arresto mayor, which prescribes in five years; AcCTaD
4.

Light penalties, in one year. (Emphases supplied)

As seen above, before the passage of the Cybercrime Prevention Act, the state
effectively waives its right to prosecute crimes involving libel. Notably, the
prescription period for libel used to be two years, but was reduced to one year
through Republic Act No. 4661 on 18 June 1966. 69 Although the law itself does not
state the reason behind the reduction, we can surmise that it was made in

recognition of the harshness of the previous period, another act of grace by the
State.
With the increase of penalty by one degree pursuant to Section 6 of the Cybercrime
Prevention Act, however, the penalty for libel through ICT becomes afflictive under
Article 25 of the Revised Penal Code. Accordingly, under the above-quoted
provision, the crime of libel through ICT shall now possibly prescribe in 15 years a
15-fold increase in the prescription period. 70 In effect, the State's grant of amnesty
to the offender will now be delayed by 14 years more. Until a definite ruling from
this Court in a proper case is made, there is uncertainty as to whether the one-year
prescription period for ordinary libel will also apply to libel through ICT. HSEIAT
Similarly, under Article 92, the prescription period for the penalty of libel through
ICT is also increased from 10 years the prescription period for correctional
penalties to 15 years, the prescription for afflictive penalties other than reclusin
perpetua.
These twin increases in both the prescription period for the crime of libel through
ICT and in that for its penalty are additional factors in the public's rational
calculation of whether or not to exercise their freedom of speech and whether to
exercise that freedom through ICT. Obviously, the increased prescription periods
yet again tilt the scales, heavily against the exercise of this freedom.
Regrettably, the records of the Bicameral Conference Committee deliberation do not
show that the legislators took into careful consideration this domino effect that,
when taken as a whole, clearly discourages the exercise of free speech. This,
despite the fact that the records of the committee deliberations show that the
legislators became aware of the need to carefully craft the application of the onedegree increase in penalty and "to review again the Revised Penal Code and see
what ought to be punished, if committed through the computer." But against their
better judgment, they proceeded to make an all-encompassing application of the
increased penalty sans any careful study, as the proceedings show: HDAaIc
THE CHAIRMAN (REP. TINGA).
With regard to some of these offenses, the reason why they were not
included in the House version initially is that, the assumption that the acts
committed that would make it illegal in the real world would also be illegal in the
cyberworld, 'no.
For example, libel po. When we discussed this again with the Department of
Justice, it was their suggestion to include an all-encompassing paragraph. . .
aHcDEC
THE CHAIRMAN (SEN. ANGARA). (Off-mike)
A catch all

THE CHAIRMAN (SEN. TINGA).

. . . a catch all, wherein all crimes defined and penalized by the Revised Penal
Code as amended and special criminal laws committed by, through, and with the
use of information and communications technology shall be covered by the relevant
provisions of this act. By so doing, Mr. Chairman, we are saying that if we missed
out on any of these crimes we did not specify them, point by point they would
still be covered by this act, 'no.
So it would be up to you, Mr. Chairman. . .

DTEAHI

THE CHAIRMAN (SEN. ANGARA).

Yeah.
xxx

xxx

xxx

THE CHAIRMAN (REP. TINGA).

. . . do we specify this and then or do we just use an all-encompassing
paragraph to cover them. AHEDaI
THE CHAIRMAN (SEN. ANGARA).
Well, as you know, the Penal Code is really a very, very old code. In fact, it
dates back to the Spanish time and we amend it through several Congresses. So like
child pornography, this is a new crime, cybersex is a new crime. Libel through the
use of computer system is a novel way of slandering and maligning people. So we
thought that we must describe it with more details and specificity as required by the
rules of the Criminal Law. We've got to be specific and not general in indicting a
person so that he will know in advance what he is answering for. But we can still
include and let-anyway, we have a separability clause, a catch all provision that you
just suggested and make it number five. Any and all crimes punishable under the
Revised Penal Code not heretofore enumerated above but are committed through
the use of computer or computer system shall also be punishable but we should
match it with a penalty schedule as well. EHScCA
So we've got to review. Mukhang mahirap gawin yun, huh. We have to review
again the Revised Penal Code and see what ought to be punished, if committed
through the computer. Then we've got to review the penalty, huh.
THE CHAIRMAN (REP. TINGA).
I agree, Mr. Chairman, that you are defining the newer crimes. But I also
agree as was suggested earlier that there should be an all-encompassing phrase to
cover these crimes in the Penal Code, 'no. Can that not be matched with a penalty
clause that would cover it as well? Instead of us going line by line through the

THE CHAIRMAN (SEN. ANGARA).

So you may just have to do that by a reference. The same penalty imposed
under the Revised Penal Code shall be imposed on these crimes committed through
computer or computer systems. aDcTHE
xxx

xxx

xxx

THE CHAIRMAN (REP. TINGA).

Okay.
And may we recommend, Mr. Chairman, that your definition of the penalty be
added as well where it will be one degree higher. . . ESCcaT
THE CHAIRMAN (SEN. ANGARA).
Okay.
THE CHAIRMAN (REP. TINGA).
. . . than the relevant penalty as prescribed in the Revised Penal Code.
So, we agree with your recommendation, Mr. Chairman.
xxx

xxx

xxx

THE CHAIRMAN (SEN. ANGARA).

Okay, provided that the penalty shall be one degree higher than that imposed
under the Revised Penal Code. HSCATc
Okay, so
xxx

xxx

xxx

REP. C. SARMIENTO.
Going by that ruling, if one commits libel by email, then the penalty is going
to be one degree higher. . .
THE CHAIRMAN (SEN. ANGARA).
One degree higher.
REP. C. SARMIENTO.
. . . using email?

HcSaTI

THE CHAIRMAN (SEN. ANGARA).

Yes.
REP. C. SARMIENTO.
As compared with libel through media or distributing letters or faxes.
THE CHAIRMAN (SEN. ANGARA).
I think so, under our formulation. Thank you. (Emphases supplied) 71 DCcAIS
ICT as a qualifying aggravating
circumstance cannot be offset by
any mitigating circumstance.
A qualifying aggravating circumstance has the effect not only of giving the crime its
proper and exclusive name, but also of placing the offender in such a situation as to
deserve no other penalty than that especially prescribed for the crime. 72 Hence, a
qualifying aggravating circumstance increases the penalty by degrees. For instance,
homicide would become murder if attended by the qualifying circumstance of
treachery, thereby increasing the penalty from reclusin temporal to reclusin
perpetua. 73 It is unlike a generic aggravating circumstance, which increases the
penalty only to the maximum period of the penalty prescribed by law, and not to an
entirely higher degree. 74 For instance, if the generic aggravating circumstance of
dwelling or nighttime attends the killing of a person, the penalty will remain the
same as that for homicide (reclusin temporal), but applied to its maximum period.
Also, a generic aggravating circumstance may be offset by a generic mitigating
circumstance, while a qualifying aggravating circumstance cannot be. 75 TAECSD
Hence, before the Cybercrime Prevention Act, libel even if committed through ICT
was punishable only by prisin correccional from its minimum (6 months and 1
day to 2 years and 4 months) to its medium period (2 years, 4 months, and 1 day to
4 years and 2 months).
Under Section 6 however, the offender is now punished with a new range of penalty
prisin correccional in its maximum period (from 4 years, 2 months and 1 day to
6 years) to prisin mayor in its minimum period (from 6 years and 1 day to 8 years).
And since the use of ICT as a qualifying aggravating circumstance cannot be offset
by any mitigating circumstance, such as voluntary surrender, the penalty will
remain within the new range of penalties. cIaHDA
As previously discussed, qualifying aggravating circumstances, by themselves,
produce an in terrorem effect. A twofold increase in the maximum penalty from 4
years and 2 months to 8 years for the use of an otherwise beneficial and
commonly used means of communication undeniably creates a heavier invidious
chilling effect.

The Court has the duty to restore

the balance and protect the
exercise of freedom of speech.
Undeniably, there may be substantial distinctions between ICT and other means of
committing libel that make ICT a more efficient and accessible means of committing
libel. However, it is that same efficiency and accessibility that has made ICT an
inextricable part of people's lives and an effective and widely used tool for the
exercise of freedom of speech, a freedom that the Constitution protects and that
this Court has a duty to uphold. SAHaTc
Facial challenges have been entertained when, in the judgment of the Court, the
possibility that the freedom of speech may be muted and perceived grievances left
to fester outweighs the harm to society that may be brought about by allowing
some unprotected speech or conduct to go unpunished. 76
In the present case, it is not difficult to see how the increase of the penalty under
Section 6 mutes freedom of speech. It creates a domino effect that effectively
subjugates the exercise of the freedom longer prison terms, harsher accessory
penalties, loss of benefits under the Probation Law, extended prescription periods,
and ineligibility of these penalties to be offset by mitigating circumstances. What
this Court said in People v. Godoy, 77 about "mankind's age-old observation" on
capital punishment, is appropriate to the penalty in the present case: "If it is
justified, it serves as a deterrent; if injudiciously imposed, it generates resentment."
78 Thus, I am of the opinion that Section 6, as far as libel is concerned, is facially
invalid. SaICcT
B.

Section 12 Real-Time Collection

of Traffic Data.
Real-time collection of traffic data may be indispensable to law enforcement in
certain instances. Also, traffic data per se may be examined by law enforcers, since
there is no privacy expectation in them. However, the authority given to law
enforcers must be circumscribed carefully so as to safeguard the privacy of users of
electronic communications. Hence, I support the ponencia in finding the first
paragraph of Section 12 unconstitutional because of its failure to provide for strong
safeguards against intrusive real-time collection of traffic data. I clarify, however,
that this declaration should not be interpreted to mean that Congress is now
prevented from going back to the drawing board in order to fix the first paragraph of
Section 12. Real-time collection of traffic data is not invalid per se. There may be
instances in which a warrantless real-time collection of traffic data may be allowed
when robust safeguards against possible threats to privacy are provided.
Nevertheless, I am of the opinion that there is a need to explain why real-time

collection of traffic data may be vital at times, as well as to explain the nature of
traffic data. DAEaTS
Indispensability of Real-time
Collection of Traffic Data
In order to gain a contextual understanding of the provision under the Cybercrime
Prevention Act on the real-time collection of traffic data, it is necessary to refer to
the Budapest Convention on Cybercrime, which the Philippine Government
requested 79 to be invited to accede to in 2007. The Cybercrime Prevention Act was
patterned after this convention. 80
The Budapest Convention on Cybercrime is an important treaty, because it is the
first and only multinational agreement on cybercrime. 81 It came into force on 1 July
2004 82 and, to date, has been signed by 45 member states of the Council of
Europe (COE), 36 of which have ratified the agreement. 83 Significantly, the COE is
the leading human rights organization of Europe. 84 Moreover, two important nonmember states or "partner countries" 85 have likewise ratified it the United
States on 29 September 2006 and Japan on 3 July 2012. Australia and the
Dominican Republic have also joined by accession. 86 cDAISC
The Convention "represents a comprehensive international response to the
problems of cybercrime" 87 and is the product of a long process of careful expert
studies and international consensus. From 1985 to 1989, the COE's Select
Committee of Experts on Computer-Related Crime debated issues before drafting
Recommendation 89(9). This Recommendation stressed the need for a quick and
adequate response to the cybercrime problems emerging then and noted the need
for an international consensus on criminalizing specific computer-related offenses.
88 In 1995, the COE adopted Recommendation No. R (95)13, which detailed
principles addressing search and seizure, technical surveillance, obligations to
cooperate with the investigating authorities, electronic evidence, and international
cooperation. 89 In 1997, the new Committee of Experts on Crime in Cyberspace was
created to examine, "in light of Recommendations No. R (89)9 and No. R (95)13,"
the problems of "cyberspace offenses and other substantive criminal law issues
where a common approach may be necessary for international cooperation." It was
also tasked with the drafting of "a binding legal instrument" to deal with these
issues. The preparation leading up to the Convention entailed 27 drafts over four
years. 90
As mentioned earlier, the Philippines was one of the countries that requested to be
invited to accede to this very important treaty in 2007, and the Cybercrime
Prevention Act was patterned after the convention. 91 aHSCcE
Article 1 of the Budapest Convention on Cybercrime defines "traffic data" as follows:

d.
"traffic data" means any computer data relating to a communication by
means of a computer system, generated by a computer system that formed a part
in the chain of communication, indicating the communication's origin, destination,
route, time, date, size, duration, or type of underlying service.
Section 3 of the Cybercrime Prevention Act has a starkly similar definition of "traffic
data":
(p)
Traffic data or non-content data refers to any computer data other than the
content of the communication including, but not limited to, the communication's
origin, destination, route, time, date, size, duration, or type of underlying service.
STIEHc
However, the definition in the Cybercrime Prevention Act improves on that of the
Convention by clearly restricting traffic data to those that are non-content in nature.
On top of that, Section 12 further restricts traffic data to exclude those that refer to
the identity of persons. The provision states:
Traffic data refer only to the communication's origin, destination, route, time, date,
size, duration, or type of underlying service, but not content, nor identities.
(Emphasis supplied)
Undoubtedly, these restrictions were made because Congress wanted to ensure the
protection of the privacy of users of electronic communication. Congress must have
also had in mind the 1965 Anti-Wiretapping Act, as well as the Data Privacy Act
which was passed only a month before the Cybercrime Prevention Act. However, as
will be shown later, the restrictive definition is not coupled with an equally
restrictive procedural safeguard. This deficiency is the Achilles' heel of the provision.
IASTDE
One of the obligations under the Budapest Convention on Cybercrime is for state
parties to enact laws and adopt measures concerning the real-time collection of
traffic data, viz.:
Article 20.

Real-time collection of traffic data.

1.
Each Party shall adopt such legislative and other measures as may be
necessary to empower its competent authorities to:
a.
collect or record through the application of technical means on the territory of
that Party, and
b.

compel a service provider, within its existing technical capability:

EcHTDI

i.
to collect or record through the application of technical means on the territory
of that Party; or

ii.
to co-operate and assist the competent authorities in the collection or
recording of, traffic data, in real-time, associated with specified communications in
its territory transmitted by means of a computer system.
2.
Where a Party, due to the established principles of its domestic legal system,
cannot adopt the measures referred to in paragraph 1.a, it may instead adopt
legislative and other measures as may be necessary to ensure the real-time
collection or recording of traffic data associated with specified communications
transmitted in its territory, through the application of technical means on that
territory. aCTcDH
3.
Each Party shall adopt such legislative and other measures as may be
necessary to oblige a service provider to keep confidential the fact of the execution
of any power provided for in this article and any information relating to it.
4.
The powers and procedures referred to in this article shall be subject to
Articles 14 and 15. (Emphases supplied)
The Explanatory Report on the Budapest Convention on Cybercrime explains the
ephemeral and volatile nature of traffic data, which is the reason why it has to be
collected in real-time if it is to be useful in providing a crucial lead to investigations
of criminality online as follows: 92 ITESAc
29.
In case of an investigation of a criminal offence committed in relation to a
computer system, traffic data is needed to trace the source of a communication as
a starting point for collecting further evidence or as part of the evidence of the
offence. Traffic data might last only ephemerally, which makes it necessary to order
its expeditious preservation. Consequently, its rapid disclosure may be necessary to
discern the communication's route in order to collect further evidence before it is
deleted or to identify a suspect. The ordinary procedure for the collection and
disclosure of computer data might therefore be insufficient. Moreover, the collection
of this data is regarded in principle to be less intrusive since as such it doesn't
reveal the content of the communication which is regarded to be more sensitive.
aATESD
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133. One of the major challenges in combating crime in the networked

environment is the difficulty in identifying the perpetrator and assessing the extent
and impact of the criminal act. A further problem is caused by the volatility of
electronic data, which may be altered, moved or deleted in seconds. For example, a
user who is in control of the data may use the computer system to erase the data
that is the subject of a criminal investigation, thereby destroying the evidence.
Speed and, sometimes, secrecy are often vital for the success of an investigation.
DSITEH

134. The Convention adapts traditional procedural measures, such as search and
seizure, to the new technological environment. Additionally, new measures have
been created, such as expedited preservation of data, in order to ensure that
traditional measures of collection, such as search and seizure, remain effective in
the volatile technological environment. As data in the new technological
environment is not always static, but may be flowing in the process of
communication, other traditional collection procedures relevant to
telecommunications, such as real-time collection of traffic data and interception of
content data, have also been adapted in order to permit the collection of electronic
data that is in the process of communication. Some of these measures are set out in
Council of Europe Recommendation No. R (95) 13 on problems of criminal
procedural law connected with information technology. IHaSED
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214. For some States, the offences established in the Convention would normally
not be considered serious enough to permit interception of content data or, in some
cases, even the collection of traffic data. Nevertheless, such techniques are often
crucial for the investigation of some of the offences established in the Convention,
such as those involving illegal access to computer systems, and distribution of
viruses and child pornography. The source of the intrusion or distribution, for
example, cannot be determined in some cases without real-time collection of traffic
data. In some cases, the nature of the communication cannot be discovered without
real-time interception of content data. These offences, by their nature or the means
of transmission, involve the use of computer technologies. The use of technological
means should, therefore, be permitted to investigate these offences. . . . . DHSCTI
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216. Often, historical traffic data may no longer be available or it may not be
relevant as the intruder has changed the route of communication. Therefore, the
real-time collection of traffic data is an important investigative measure. Article 20
addresses the subject of real-time collection and recording of traffic data for the
purpose of specific criminal investigations or proceedings. SEcITC
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218. . . . . When an illegal distribution of child pornography, illegal access to a

computer system or interference with the proper functioning of the computer
system or the integrity of data, is committed, particularly from a distance such as
through the Internet, it is necessary and crucial to trace the route of the
communications back from the victim to the perpetrator. Therefore, the ability to
collect traffic data in respect of computer communications is just as, if not more,
important as it is in respect of purely traditional telecommunications. This
investigative technique can correlate the time, date and source and destination of

the suspect's communications with the time of the intrusions into the systems of
victims, identify other victims or show links with associates. aCSEcA
219. Under this article, the traffic data concerned must be associated with
specified communications in the territory of the Party. The specified
'communications' are in the plural, as traffic data in respect of several
communications may need to be collected in order to determine the human source
or destination (for example, in a household where several different persons have
the use of the same telecommunications facilities, it may be necessary to correlate
several communications with the individuals' opportunity to use the computer
system). The communications in respect of which the traffic data may be collected
or recorded, however, must be specified. Thus, the Convention does not require or
authorise the general or indiscriminate surveillance and collection of large amounts
of traffic data. It does not authorise the situation of 'fishing expeditions' where
criminal activities are hopefully sought to be discovered, as opposed to specific
instances of criminality being investigated. The judicial or other order authorising
the collection must specify the communications to which the collection of traffic
data relates. DIETHS
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225. Like real-time interception of content data, real-time collection of traffic data
is only effective if undertaken without the knowledge of the persons being
investigated. Interception is surreptitious and must be carried out in such a manner
that the communicating parties will not perceive the operation. Service providers
and their employees knowing about the interception must, therefore, be under an
obligation of secrecy in order for the procedure to be undertaken effectively.
(Emphases supplied) SIcTAC
We can gather from the Explanatory Note that there are two seemingly conflicting
ideas before us that require careful balancing the fundamental rights of
individuals, on the one hand, and the interests of justice (which may also involve
the fundamental rights of another person) on the other. There is no doubt that
privacy is vital to the existence of a democratic society and government such as
ours. It is also critical to the operation of our economy. Citizens, governments, and
businesses should be able to deliberate and make decisions in private, away from
the inhibiting spotlight. 93 Certainly, this privacy should be maintained in the
electronic context as social, governmental and economic transactions are made in
this setting. 94 At the same time however, law enforcers must be equipped with upto-date tools necessary to protect society and the economy from criminals who
have also taken advantage of electronic technology. These enforcers must be
supplied with investigative instruments to solve crimes and punish the criminals. 95
What is beyond debate, however, is that real-time collection of traffic data may be
absolutely necessary in criminal investigations such that, without it, authorities may

not be able to probe certain crimes at all. In fact, it has been found that crucial
electronic evidence may never be stored at all, as it may exist only in transient
communications. 96 The UN Office on Drugs and Crime requires real-time collection
of data because of the urgency, sensitivity, or complexity of a law enforcement
investigation. 97 EHCDSI
Hence, it is imprudent to precipitately make (1) an absolute declaration that all
kinds of traffic data from all types of sources are protected by the constitutional
right to privacy; and (2) a blanket pronouncement that the real-time collection
thereof may only be conducted upon a prior lawful order of the court to constitute a
valid search and seizure. Rather, the Court should impose a strict interpretation of
Section 12 in the light of existing constitutional, jurisprudential and statutory
guarantees and safeguards.
The Constitutional guarantee
against unreasonable search and
seizure is inviolable.
The inviolable right against unreasonable search and seizure is enshrined in Article
III of the Constitution, which states: aTcSID
Section 2.
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized. DTSaHI
It is clear from the above that the constitutional guarantee does not prohibit all
searches and seizures, but only unreasonable ones. 98 As a general rule, a search
and seizure is reasonable when probable cause has been established. Probable
cause is the most restrictive of all thresholds. It has been broadly defined as those
facts and circumstances that would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. 99 It has been
characterized as referring to "factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians, act." 100 Furthermore,
probable cause is to be determined by a judge prior to allowing a search and
seizure. The judge's determination shall be contained in a warrant, which shall
particularly describe the place to be searched and the things to be seized. Thus,
when no warrant is issued, it is assumed that there is no probable cause to conduct
the search, making that act unreasonable. ISaTCD

For the constitutional guarantee to apply, however, there must first be a search in
the constitutional sense. 101 It is only when there is a search that a determination
of probable cause is required. In Valmonte v. De Villa, the Court said that the
constitutional rule cannot be applied when mere routine checks consisting of "a
brief question or two" are involved. 102 The Court said that if neither the vehicle nor
its occupants are subjected to a search the inspection of the vehicle being limited
to a visual search there is no violation of an individual's right against
unreasonable searches and seizures. Hence, for as long as there is no physical
intrusion upon a constitutionally protected area, there is no search. 103 EHTSCD
In recent years, the Court has had occasion to rule 104 that a search occurs when
the government violates a person's "reasonable expectation of privacy," a doctrine
first enunciated in Katz v. United States. 105 Katz signalled a paradigm shift, as the
inquiry into the application of the constitutional guarantee was now expanded
beyond "the presence or absence of a physical intrusion into any given enclosure"
and deemed to "[protect] people, not places." 106 Under this expanded paradigm,
the "reasonable expectation of privacy" can be established if the person claiming it
can show that (1) by his conduct, he exhibited an expectation of privacy and (2) his
expectation is one that society recognizes as reasonable. In People v. Johnson, 107
which cited Katz, the seizure and admissibility of the dangerous drugs found during
a routine airport inspection were upheld by the Court, which explained that
"[p]ersons may lose the protection of the search and seizure clause by exposure of
their persons or property to the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is prepared to recognize as
reasonable." 108 EScAID
Traffic data per se do not enjoy
privacy protection; hence, no
determination of probable cause
is needed for the real-time
collection thereof.
The very public structure of the Internet and the nature of traffic data per se
undermine any reasonable expectation of privacy in the latter. The Internet is
custom-designed to frustrate claims of reasonable expectation of privacy in traffic
data per se, since the latter are necessarily disclosed to the public in the process of
communication. DTEAHI
Individuals have no legitimate expectation of privacy in the data they disclose to the
public and should take the risks for that disclosure. This is the holding of the U.S.
Supreme Court in Smith v. Maryland. 109 The 1979 case, which has stood the test
of time and has been consistently applied by American courts in various

communications cases including recent ones in the electronic setting arose

from a police investigation of robbery. The woman who was robbed gave the police
a description of the robber and of a car she had observed near the scene of the
crime. After the robbery, she began receiving threatening phone calls from a man
identifying himself as the robber. The car was later found to be registered in the
name of the petitioner, Smith. The next day, the telephone company, upon police
request, installed a pen register at its central offices to record the numbers dialled
from the telephone at the home of Smith. The register showed that he had indeed
been calling the victim's house. However, since the installation of the pen register
was done without a warrant, he moved to suppress the evidence culled from the
device. In affirming the warrantless collection and recording of phone numbers
dialled by Smith, the U.S. Supreme Court said: AHcaDC
This claim must be rejected. First, we doubt that people in general entertain any
actual expectation of privacy in the numbers they dial. All telephone users realize
that they must "convey" phone numbers to the telephone company, since it is
through telephone company switching equipment that their calls are completed. All
subscribers realize, moreover, that the phone company has facilities for making
permanent records of the numbers they dial, for they see a list of their longdistance (toll) calls on their monthly bills. . . . . AcEIHC
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Second, even if petitioner did harbor some subjective expectation that the phone
numbers he dialed would remain private, this expectation is not "one that society is
prepared to recognize as 'reasonable.'" Katz v. United States, 389 U.S., at 361. This
Court consistently has held that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties. E.g., United States v. Miller,
425 U.S., at 442-444; . . . . 110 (Emphases supplied) cSATEH
I am of the opinion that this Court may find the ruling in United States v. Forrester,
111 persuasive. In that case, the U.S. 9th Circuit Court of Appeals applied the
doctrine in Smith to electronic communications, and ruled that Internet users have
no expectation of privacy in the to/from addresses of their messages or in the IP
addresses of the websites they visit. According to the decision, users should know
that these bits of information are provided to and used by Internet service providers
for the specific purpose of directing the routing of information. It then emphasized
that this examination of traffic data is "conceptually indistinguishable from
government surveillance of physical mail," and that the warrantless search of
envelope or routing information has been deemed valid as early as the 19th
century. The court therein held: TICaEc
We conclude that the [electronic] surveillance techniques the government employed
here are constitutionally indistinguishable from the use of a pen register that the
Court approved in Smith. First, e-mail and Internet users, like the telephone users in

Smith, rely on third-party equipment in order to engage in communication. Smith

based its holding that telephone users have no expectation of privacy in the
numbers they dial on the users' imputed knowledge that their calls are completed
through telephone company switching equipment. . . . . Analogously, e-mail and
Internet users have no expectation of privacy in the to/from addresses of their
messages or the IP addresses of the websites they visit because they should know
that this information is provided to and used by Internet service providers for the
specific purpose of directing the routing of information. Like telephone numbers,
which provide instructions to the "switching equipment that processed those
numbers," e-mail to/from addresses and IP addresses are not merely passively
conveyed through third party equipment, but rather are voluntarily turned over in
order to direct the third party's servers. . . . . CacEID
Second, e-mail to/from addresses and IP addresses constitute addressing
information and do not necessarily reveal any more about the underlying contents
of communication than do phone numbers. When the government obtains the
to/from addresses of a person's e-mails or the IP addresses of websites visited, it
does not find out the contents of the messages or know the particular pages on the
websites the person viewed. At best, the government may make educated guesses
about what was said in the messages or viewed on the websites based on its
knowledge of the e-mail to/from addresses and IP addresses but this is no
different from speculation about the contents of a phone conversation on the basis
of the identity of the person or entity that was dialed. . . . . Nonetheless, the Court
in Smith and Katz drew a clear line between unprotected addressing information
and protected content information that the government did not cross here. DHcSIT
The government's surveillance of e-mail addresses also may be technologically
sophisticated, but it is conceptually indistinguishable from government surveillance
of physical mail. In a line of cases dating back to the nineteenth century, the
Supreme Court has held that the government cannot engage in a warrantless
search of the contents of sealed mail, but can observe whatever information people
put on the outside of mail, because that information is voluntarily transmitted to
third parties. . . . . E-mail, like physical mail, has an outside address "visible" to the
third-party carriers that transmit it to its intended location, and also a package of
content that the sender presumes will be read only by the intended recipient. The
privacy interests in these two forms of communication are identical. The contents
may deserve Fourth Amendment protection, but the address and size of the
package do not. 112 (Emphases and underscoring supplied)
Based on the cogent logic explained above, I share the view that Internet users
have no reasonable expectation of privacy in traffic data per se or in those pieces of
information that users necessarily provide to the ISP, a third party, in order for their
communication to be transmitted. This position is further bolstered by the fact that
such communication passes through as many ISPs as needed in order to reach its
intended destination. Thus, the collection and recording of these data do not

constitute a search in the constitutional sense. As such, the collection thereof may
be done without the necessity of a warrant. EHaDIC
Indeed, Professor Orin Kerr, 113 a prominent authority on electronic privacy,
observes that in the U.S., statutory rather than constitutional protections provide
the essential rules governing Internet surveillance law. He explains that the very
nature of the Internet requires the disclosure of non-content information, not only to
the ISP contracted by the user, but also to other computers in order for the
communication to reach the intended recipient. Professor Kerr explains thus:
Recall that the Fourth Amendment effectively carves out private spaces where law
enforcement can't ordinarily go without a warrant and separates them from public
spaces where it can. One important corollary of this structure is that when a person
sends out property or information from her private space into a public space, the
exposure to the public space generally eliminates the Fourth Amendment
protection. If you put your trash bags out on the public street, or leave your private
documents in a public park, the police can inspect them without any Fourth
Amendment restrictions.
The Supreme Court's cases interpreting this so-called "disclosure principle" have
indicated that the principle is surprisingly broad. For example, the exposure need
not be to the public. Merely sharing the information or property with another person
allows the government to go to that person to obtain it without Fourth Amendment
protection. . . . . DTcACa
Why does this matter to Internet surveillance? It matters because the basic design
of the Internet harnesses the disclosure, sharing, and exposure of information to
many machines connected to the network. The Internet seems almost customdesigned to frustrate claims of broad Fourth Amendment protection: the Fourth
Amendment does not protect information that has been disclosed to third-parties,
and the Internet works by disclosing information to third-parties. Consider what
happens when an Internet user sends an e-mail. By pressing "send" on the user's email program, the user sends the message to her ISP, disclosing it to the ISP, with
instructions to deliver it to the destination. The ISP computer looks at the e-mail,
copies it, and then sends a copy across the Internet where it is seen by many other
computers before it reaches the recipient's ISP. The copy sits on the ISP's server
until the recipient requests the e-mail; at that point, the ISP runs off a copy and
sends it to the recipient. While the e-mail may seem like a postal mail, it is sent
more like a post card, exposed during the course of delivery. 114 (Emphases and
underscoring supplied.) DAEIHT
Clearly, considering that the Internet highway is so public, and that non-content
traffic data, unlike content data, are necessarily exposed as they pass through the
Internet before reaching the recipient, there cannot be any reasonable expectation
of privacy in non-content traffic data per se.

Traffic data to be collected are

explicitly limited to non-content
and non-identifying public
information which, unlike content
data, are not constitutionally
protected.
The U.S. Supreme Court and Court of Appeals in the above cases emphasized the
distinction between content and non-content data, with only content data enjoying
privacy protection. In Smith the Court approved of the use of pen registers, pointing
out that "a pen register differs significantly from [a] listening device . . . for pen
registers do not acquire the contents of communications." 115 Hence, the
information derived from the pen register, being non-content, is not covered by the
constitutional protection. In Forrester, it was held that while the content of both email and traditional mail are constitutionally protected, the non-content or envelope
information is not. On the other hand, in the 2007 case Warshak v. United States,
116 the Sixth Circuit Court of Appeals held that the contents of emails are
protected. It employed the content/non-content distinction in saying that the
"combined precedents of Katz and Smith" required a "heightened protection for the
content of the communications." 117 Consequently, it found a strong "contentbased privacy interest" in e-mails. 118 aCITEH
Traffic data are of course explicitly restricted to non-content and non-identifying
data as defined in Section 12 of the Cybercrime Prevention Act itself. As such, it is
plain that traffic data per se are not constitutionally protected.
The distinction between content and non-content data, such as traffic data, is
important because it keeps the balance between protecting privacy and maintaining
public order through effective law enforcement. That is why our Congress made
sure to specify that the traffic data to be collected are limited to non-content data.
For good measure, it additionally mandated that traffic data be non-identifying.
Kerr explains how the distinction between content and non-content information in
electronic communication mirrors perfectly and logically the established inside and
outside distinction in physical space, as far as delineating the investigative
limitations of law enforcers is concerned. Inside space is constitutionally protected,
and intrusion upon it requires a court warrant; in contrast, surveillance of outside
space does not require a warrant because it is not a constitutionally cognizable
search. He explains thus:
Whereas the inside/outside distinction is basic to physical world investigations, the
content/non-content distinction is basic to investigations occurring over

communications networks. Communications networks are tools that allow their

users to send and receive communications from other users and services that are
also connected to the network. This role requires a distinction between addressing
information and contents. The addressing (or "envelope") information is the data
that the network uses to deliver the communications to or from the user; the
content information is the payload that the user sends or receives. CHDAaS
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We can see the same distinctions at work with the telephone network. The
telephone network permits users to send and receive live phone calls. The
addressing information is the number dialed ("to"), the originating number ("from"),
the time of the call, and its duration. Unlike the case of letters, this calling
information is not visible in the same way that the envelope of a letter is. At the
same time, it is similar to the information derived from the envelope of a letter. In
contrast, the contents are the call itself, the sound sent from the caller's
microphone to the receiver's speaker and from the receiver's microphone back to
the caller's speaker. cETDIA
Drawing the content/non-content distinction is somewhat more complicated
because the Internet is multifunctional. . . . . Still, the content/non-content
distinction holds in the Internet context as well. The easiest cases are human-tohuman communications like e-mail and instant messages. The addressing
information is the "to" and "from" e-mail address, the instant message to and from
account names, and the other administrative information the computers generate in
the course of delivery. As in the case of letters and phone calls, the addressing
information is the information that the network uses to deliver the message. In
contrast, the actual message itself is the content of the communication. SCHIcT
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The content/non-content distinction provides a natural replacement for the

inside/outside distinction. To apply the Fourth Amendment to the Internet in a
technologically neutral way, access to the contents of communications should be
treated like access to evidence located inside. Accessing the contents of
communications should ordinarily be a search. In contrast, access to non-content
information should be treated like access to evidence found outside. Collection of
this information should presumptively not be a search.
This translation is accurate because the distinction between content and noncontent information serves the same function online that the inside/outside
distinction serves in the physical world. Non-content information is analogous to
outside information; it concerns where a person is and where a person is going.
Consider what the police can learn by watching a suspect in public. Investigating
officers can watch the suspect leave home and go to different places. They can
watch him go to lunch, go to work, and go to the park; they can watch him drive

home; and they can watch him park the car and go inside. In effect, this is to/from
information about the person's own whereabouts. DSHcTC
On the other hand, content information is analogous to inside information. The
contents of communications reveal the substance of our thinking when we assume
no one else is around. It is the space for reflection and self-expression when we take
steps to limit the audience to a specific person or even just to ourselves. The
contents of Internet communications are designed to be hidden from those other
than the recipients, much like property stored inside a home is hidden from those
who do not live with us. . . . .
The connection between content/non-content on the Internet and inside/outside in
the physical world is not a coincidence. Addressing information is itself a network
substitute for outside information, and contents are a network substitute for inside
information. Recall the basic function of communications networks: they are
systems that send and receive communications remotely so that its users do not
have to deliver or pick up the communications themselves. The non-content
information is the information the network uses to deliver communications,
consisting of where the communication originated, where it must be delivered, and
in some cases the path of delivery. This information is generated in lieu of what
would occur in public; it is information about the path and timing of delivery. In
contrast, the contents are the private communications themselves that would have
been inside in a physical network. cTDECH
xxx

xxx

xxx

In light of this, a technologically neutral way to translate the Fourth Amendment

from the physical world to the Internet would be to treat government collection of
the contents of communications as analogous to the government collection of
information inside and the collection of non-content information as analogous to the
collection of information outside. . . . . HSTAcI
This approach would mirror the line that the Fourth Amendment imposes in the
physical world. In the physical world, the inside/outside distinction strikes a sensible
balance. It generally lets the government observe where people go, when they go,
and to whom they are communicating while protecting the actual substance of their
speech from government observation without a warrant unless the speech is made
in a setting open to the public. The content/non-content distinction preserves that
function. It generally lets the government observe where people go in a virtual
sense, and to observe when and with whom communications occur. The essentially
transactional information that would occur in public in a physical world has been
replaced by non-content information in a network environment, and the
content/non-content line preserves that treatment. At the same time, the distinction
permits individuals to communicate with others in ways that keep the government
at bay. The Fourth Amendment ends up respecting private areas where people can

share their most private thoughts without government interference both in physical
space and cyberspace alike. 119 (Emphases supplied.) TIHCcA
Indeed, there is a clear distinction between content and non-content data. The
distinction presents a reasonable conciliation between privacy guarantees and law
enforcement needs, since the distinction proceeds from logical differences between
the two in their nature and privacy expectations. According to a comprehensive UN
study on six international or regional cybercrime instruments, 120 which include
provisions on real-time collection of computer data, these instruments "make a
distinction between real-time collection of traffic data and of content data" to
account for the "differences in the level of intrusiveness into the private life of
persons subject to each of the measures." 121 TAcDHS
From the above jurisprudence and scholarly analysis, there is enough basis to
conclude that, given the very public nature of the Internet and the nature of traffic
data as non-content and non-identifying information, individuals cannot have
legitimate expectations of privacy in traffic data per se.
Section 12, however, suffers from
lack of procedural safeguards to
ensure that the traffic data to be
obtained are limited to noncontent and non-identifying data,
and that they are obtained only
for the limited purpose of
investigating specific instances of
criminality.
Thus far, it has been shown that real-time collection of traffic data may be
indispensable in providing a crucial first lead in the investigation of criminality. Also,
it has been explained that there is clearly no legitimate expectation of privacy in
traffic data per se because of the nature of the Internet it requires disclosure of
traffic data which, unlike content data, will then travel exposed as it passes through
a very public communications highway. It has also been shown that the definition of
traffic data under the law is sufficiently circumscribed to cover only non-content and
non-identifying data and to explicitly exclude content data. This distinction is
important in protecting privacy guarantees while supporting law enforcement
needs. ASIETa

However, Section 12 suffers from a serious deficiency. The narrow definition of

traffic data per se as non-content and non-identifying data is not supported by
equally narrow procedural criteria for the exercise of the authority to obtain them.
The government asserts that Section 12 provides for some protection against
abuse. While this may be true, the safeguards provided are not sufficient to protect
constitutional guarantees.
Firstly, the provision does not indicate what the purpose of the collection would be,
since it only provides for "due cause" as a trigger for undertaking the activity. While
the government has explained the limited purpose of the collection of traffic data,
which purportedly can only go as far as providing an initial lead to an ongoing
criminal investigation primarily in the form of an IP address, this limited purpose is
not explicit in the assailed provision. Moreover, there is no assurance that the
collected traffic data would not be used for preventive purposes as well. Notably,
the Solicitor-General defines "due cause" as "good faith law enforcement reason"
122 or "when there's a complaint from a citizen that cybercrime has been
committed." According to the Solicitor General this situation is "enough to trigger" a
collection of traffic data. 123 However, during the oral arguments, the Solicitor
General prevaricated on whether Section 12 could also be used for preventive
monitoring. He said that there might be that possibility, although the purpose would
"largely" be for the investigation of an existing criminal act. 124 This vagueness is
disconcerting, since a preventive monitoring would necessarily entail casting a
wider net than an investigation of a specific instance of criminality would.
Preventive monitoring would correspondingly need more restrictive procedural
safeguards. This failure to provide an unequivocally specified purpose is fatal
because it would give the government the roving authority to obtain traffic data for
any purpose. 125 HTCDcS
Secondly, Section 12 does not indicate who will determine "due cause." This failure
to assign the determination of due cause to a specific and independent entity opens
the floodgates to possible abuse of the authority to collect traffic data in real-time,
since the measure will be undertaken virtually unchecked. Also, while Section 12
contemplates the collection only of data "associated with specified
communications," it does not indicate who will make the specification and how
specific it will be.
Finally, the collection of traffic data under Section 12 is not time-bound. This lack of
limitation on the period of collection undoubtedly raises concerns about the
possibility of unlimited collection of traffic data in bulk for purposes beyond the
simple investigation of specific instances of criminality. CcaDHT
Existing approaches in other
jurisdictions for collection of
traffic data

To foreclose an Orwellian collection of traffic data in bulk that may lead to the
invasion of privacy, the relevant law must be canalized to accommodate only an
acceptable degree of discretion to law enforcers. It must provide for clear
parameters and robust safeguards for the exercise of the authority. Notably, the
Solicitor General himself has observed that stronger safeguards against abuse by
law enforcers may have to be put in place. 126 There are also indications that the
legislature is willing to modify the law to provide for stronger safeguards, as shown
in the bills filed in both chambers of Congress. 127
In fashioning procedural safeguards against invasion of privacy, the rule of thumb
should be: the more intrusive the activity, the stricter the procedural safeguards.
Other countries have put in place some restrictions on the real-time collection of
traffic data in their jurisdictions. In the United States, the following are the
requirements for the exercise of this authority: THAICD
(1)

relevance of the collected information to an ongoing criminal investigation;

(2)
court order issued by a judicial officer based upon the certification of a
government attorney; and
(3)
limitation of the period of collection to sixty days (with the possibility of
extension).
In the United Kingdom, the following requirements must be complied with:

DcSTaC

(1)
necessity of the information to be collected for the investigation of crime,
protection of public safety, or a similar goal;
(2)

approval of a high-level government official;

(3)

proportionality of the collection to what is sought to be achieved; and

(4)

limitation of the period of collection to thirty days. 128

The above requirements laid down by two different jurisdictions offer different but
similar formulations. As to what the triggering threshold or purpose would be, it
could be the necessity threshold (for the investigation of crime, protection of public
safety, or a similar goal) used in the United Kingdom or the relevance threshold (to
an ongoing criminal investigation) in the United States. Note that these thresholds
do not amount to probable cause. IcDCaS
As to who determines compliance with the legal threshold that triggers the exercise
of the authority to collect traffic data in real time, the laws of the United States
suggest that special judicial intervention is required. This intervention would be a
very strong measure against the violation of privacy even if the judicial order does
not require determination of probable cause. At the same time, however, the
general concern of Justice Brion that "time is of the utmost essence in cyber crime

law enforcement" needs to be considered. Hence, procedural rules of court will have
to be adjusted so as not to unduly slow down law enforcement response to
criminality considering how ephemeral some information could be. We must ensure
that these rules are not out of step with the needs of law enforcement, given
current technology. It may be noted that Justice Carpio has broached the idea of
creating 24-hour courts to address the need for speedy law enforcement response.
129 HAIaEc
In the United Kingdom, the mechanism suggests that the authorizing entity need
not be a judge, as it could be a high-ranking government official. Perhaps this nonjudicial authorization proceeds from the consideration that since the triggering
threshold is not probable cause, but only necessity to an ongoing criminal
investigation, there is no need for a judicial determination of compliance with the
aforesaid threshold. cSATEH
The above requirements also provide limits on the period of collection of traffic
data. In the United States, the limit is 60 days with a possibility of extension. This
period and the possibility of extension are similar to those provided under our AntiWiretapping Law. Note, however, that the Anti-Wiretapping Law concerns the
content of communications whereas the traffic data to be collected under Section
12 of the Cybercrime Prevention Act is limited to non-content and non-identifying
data. Hence, the restriction on the period of collection could perhaps be eased by
extending it to a longer period in the case of the latter type of data. In the United
Kingdom, the limit is 30 days.
From the above observation of the deficiencies of Section 12, as well as the samples
from other jurisdictions, the following general guidelines could be considered to
strengthen the safeguards against possible abuse. EHTIcD
First, the relevance or necessity of the collection of traffic data to an ongoing
criminal investigation must be established. This requirement to specify the purpose
of the collection (to aid ongoing criminal investigation) will have the effect of
limiting the usage of the collected traffic data to exclude dossier building, profiling
and other purposes not explicitly sanctioned by the law. It will clarify that the
intention for the collection of traffic data is not to create a historical data base for a
comprehensive analysis of the personal life of an individual whose traffic data is
collected, but only for investigation of specific instances of criminality. More
important, it is not enough that there be an ongoing criminal investigation; the realtime collection must be shown to be necessary or at least relevant to the
investigation. Finally, it should be explicitly stated that the examination of traffic
data will not be for the purpose of preventive monitoring which, as observed earlier,
would necessarily entail a greater scope than that involved in a targeted collection
of traffic data for the investigation of a specific criminal act. SacDIE

Second, there must be an independent authority judicial or otherwise who shall

review compliance with the relevance and necessity threshold. The designation of
this authority will provide additional assurance that the activity will be employed
only in specific instances of criminal investigation and will be necessary or relevant.
The designation of an authorizing entity will also inhibit the unjustified use of realtime collection of traffic data. The position of this person should be sufficiently high
to ensure greater accountability. For instance, it was suggested during the oral
arguments that the authorizing person be a lawyer of the national government in
order to additionally strengthen that person's accountability, proceeding as it would
from his being an officer of the court. 130
Third, there must be a limitation on the period of collection. The restriction on the
time period will further prevent the indiscriminate and bulk collection of traffic data
beyond what is necessary for a regular criminal investigation. TIHDAa
As to the type of technology to be used for collection, it seems that this cannot be
specified beforehand. Certainly, only a general restriction can be made that the
technology should be capable of collecting only non-content and non-identifying
traffic data. It should not be able to directly point to the location of the users of the
Internet, the websites visited, the search words used, or any other data that reveal
the thoughts of the user.
In the end, whatever mechanism is to be set in place must satisfy the Constitution's
requirements for the safeguard of the people's right to privacy and against undue
incursions on their liberties. CacTSI
Final Words
Laws and jurisprudence should be able to keep current with the exponential growth
in information technology. 131 The challenge is acute, because the rapid progress of
technology has opened up new avenues of criminality. Understandably,
governments try to keep pace and pursue criminal elements that use new
technological avenues. It is precisely during these times of zeal that the Court must
be ever ready to perform its duty to uphold fundamental rights when a proper case
is brought before it. cDCaTH
The Court has carefully trod through the issues that have been heard in these
Petitions, especially since they involve the exercise of our power of judicial review
over acts of the legislature. I believe that we have tried to exercise utmost judicial
restraint and approached the case as narrowly as we could so as to avoid setting
sweeping and overreaching precedents. 132 We have thus prudently resolved the
present Petitions with the view in mind that a future re-examination of the law is still
possible, 133 especially when the constitutional challenges set forth become truly
ripe for adjudication. This is also so that we do not unduly tie the hands of the
government when it regulates socially harmful conduct in the light of sudden

changes in technology, especially since the regulation is meant to protect the very
same fundamental rights that petitioners are asking this Court to uphold.
However, we have also not hesitated to strike down as unconstitutional those
regulatory provisions that clearly transgress the Constitution and upset the balance
between the State's inherent police power and the citizen's fundamental rights.
After all, the lofty purpose of police power is to be at the loyal service of personal
freedom. ADcHES
WHEREFORE, I join the ponencia in resolving to leave the determination of the
correct application of Section 7 to actual cases, except as it is applied to libel.
Charging an offender both under Section 4 (c) (4) of the Cybercrime Prevention Act
and under Article 353 of the Revised Penal Code violates the guarantee against
double jeopardy and is VOID and UNCONSTITUTIONAL for that reason.
Moreover, I join in declaring the following as UNCONSTITUTIONAL:

aEHADT

1.
Section 4 (c) (4), insofar as it creates criminal liability on the part of persons
who receive a libelous post and merely react to it;
2.
Section 12, insofar as it fails to provide proper safeguards for the exercise of
the authority to collect traffic data in real time;
3.
Section 19, also insofar as it fails to provide proper standards for the exercise
of the authority to restrict or block access to computer data.
However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it applies to
Section 4 (c) (4), for unduly curtailing freedom of speech.
As regards the remaining assailed provisions, I vote to DISMISS the Petitions for
failure to establish that a pre-enforcement judicial review is warranted at this time.
TSHcIa

LEONEN

LEONEN, J., dissenting and concurring:

Most of the challenges to the constitutionality of some provisions of the Cybercrime
Prevention Act of 2012 (Republic Act No. 10175) are raised without an actual case or
controversy. Thus, the consolidated petitions should fail except for those that raise

questions that involve the imminent possibility that the constitutional guarantees to
freedom of expression will be stifled because of the broadness of the scope of the
text of the provision. In view of the primacy of this fundamental right, judicial review
of the statute itself, even absent an actual case, is viable.
With this approach, I am of the opinion that the constitution requires that libel as
presently contained in the Revised Penal Code and as reenacted in the Cybercrime
Prevention Act of 2012 (Rep. Act No. 10175) be struck down as infringing upon the
guarantee of freedom of expression provided in Article III, Section 4 of our
Constitution. I am also of the firm view that the provisions on cybersex as well as
the provisions increasing the penalties of all crimes committed with the use of
computers are unconstitutional. The provision limiting unsolicited commercial
communications should survive facial review and should not be declared as
unconstitutional. cCESTA
I concur with the majority insofar as they declare that the "take down" clause, the
provision allowing dual prosecutions of all cybercrimes, and the provision that
broadly allows warrantless searches and seizures of traffic data, are
unconstitutional. This is mainly because these present unwarranted chilling effects
on the guaranteed and fundamental rights of expression.
I
Framework of this Opinion
Reality can become far richer and more complex than our collective ability to
imagine and predict. Thus, conscious and deliberate restraint at times may be
the better part of judicial wisdom.
The judiciary's constitutionally mandated role is to interpret and apply the law. It is
not to create or amend law on the basis of speculative facts which have not yet
happened and which have not yet fully ripened into clear breaches of legally
demandable rights or obligations. Without facts that present an actual controversy,
our inquiry will be roving and unlimited. We substitute our ability to predict for the
rigor required by issues properly shaped in adversarial argument of the real. We
become oracles rather than a court of law.
This is especially so when the law is made to apply in an environment of rapidly
evolving technologies that have deep and far-reaching consequences on human
expression, interaction, and relationships. The internet creates communities which
virtually cross cultures, creating cosmopolitarian actors present in so many ways
and in platforms that we are yet starting to understand.
Petitioners came to this court via several petitions for certiorari and/or prohibition
under Rule 65 of the Rules of Court. They seek to declare certain provisions of Rep.
Act No. 10175 or the Cybercrime Prevention Act of 2012 1 as unconstitutional. They

allege grave abuse of discretion on the part of Congress. They invoke our power of
judicial review on the basis of the textual provisions of the statute in question, their
reading of provisions of the Constitution, and their speculation of facts that have not
happened may or may not happen in the context of one of the many
technologies available and evolving in cyberspace. They ask us to choose the most
evil among the many possible but still ambiguous future factual permutations and
on that basis declare provisions not yet implemented by the Executive or affecting
rights in the concrete as unconstitutional. In effect, they ask us to do what the
Constitution has not even granted to the President: a provision-by-provision veto in
the guise of their interpretation of judicial review.
Although pleaded, it is difficult to assess whether there was grave abuse of
discretion on the part of the Executive. This court issued a temporary restraining
order to even proceed with the drafting of the implementing rules. There has been
no execution of any of the provisions of the law.
This is facial review in its most concrete form. We are asked to render a preenforcement advisory opinion of a criminal statute. Generally, this cannot be done if
we are to be faithful to the design of our Constitution. HEacDA
The only instance when a facial review is permissible is when there is a clear
showing that the provisions are too broad under any reasonable reading that it
imminently threatens expression. In these cases, there must be more of a showing
than simply the in terrorem effect of a criminal statute. It must clearly and
convincingly show that there can be no determinable standards that can guide
interpretation. Freedom of expression enjoys a primordial status in the scheme of
our basic rights. It is fundamental to the concept of the people as sovereign. Any
law regardless of stage of implementation that allows vague and unlimited
latitude for law enforcers to do prior restraints on speech must be struck down on
its face.
This is the framework taken by this opinion.
The discussion in this dissenting and concurring opinion is presented in the following
order:
1.

Justiciability

2.

The Complexity of the Internet and the Context of the Law

3.

The Doctrine of Overbreadth and the Internet

4.

Take Down Clause

5.

Libel Clauses

6.

Cybersex Provisions

7.

Speech Component in the Collection of Traffic Data

8.

Commercial Speech

I (A)
Justiciability
Judicial review the power to declare a law, ordinance, or treaty as
unconstitutional or invalid is inherent in judicial power. 2 It includes the power to
"settle actual controversies involving rights which are legally demandable" 3 and "to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on any part of any branch or instrumentality of
Government." 4 The second aspect of judicial review articulated in the 1987
Constitution nuances the political question doctrine. 5 It is not licensed to do away
with the requirements of justiciability.
The general rule is still that: "the constitutionality of a statute will be passed on only
if, and to the extent that, it is directly and necessarily involved in a justiciable
controversy and is essential to the protection of the rights of the parties concerned."
6 Justiciability on the other hand requires that: (a) there must be an actual case or
controversy involving legal rights that are capable of judicial determination; (b) the
parties raising the issue must have standing or locus standi to raise the
constitutional issue; (c) the constitutionality must be raised at the earliest possible
opportunity, thus ripe for adjudication; and (d) the constitutionality must be the
very lis mota of the case, or the constitutionality must be essential to the
disposition of the case. 7
It is essential that there be an actual case or controversy. 8 "There must be existing
conflicts ripe for judicial determination not conjectural or anticipatory. Otherwise,
the decision of the Court will amount to an advisory opinion." 9
In Information Technology Foundation of the Phils. v. COMELEC, 10 this court
described the standard within which to ascertain the existence of an actual case or
controversy:
It is well-established in this jurisdiction that ". . . for a court to exercise its power of
adjudication, there must be an actual case or controversy one which involves a
conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. . . . [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging." The controversy must be justiciable definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof on the other; that is, it must concern a

real and not a merely theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. 11 (Citations omitted, emphasis supplied) ADcHES
In Lozano v. Nograles, 12 this court also dismissed the petitions to nullify House
Resolution No. 1109 or "A Resolution Calling upon the Members of Congress to
Convene for the Purpose of Considering Proposals to Amend or Revise the
Constitution, Upon a Three-fourths Vote of All the Members of Congress." In
dismissing the petitions, this court held:
It is well settled that it is the duty of the judiciary to say what the law is. The
determination of the nature, scope and extent of the powers of government is the
exclusive province of the judiciary, such that any mediation on the part of the latter
for the allocation of constitutional boundaries would amount, not to its supremacy,
but to its mere fulfillment of its "solemn and sacred obligation" under the
Constitution. This Court's power of review may be awesome, but it is limited to
actual cases and controversies dealing with parties having adversely legal claims, to
be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. The "case-orcontroversy" requirement bans this court from deciding "abstract, hypothetical or
contingent questions," 5 lest the court give opinions in the nature of advice
concerning legislative or executive action." (Emphasis supplied) 13
Then, citing the classic words in Angara v. Electoral Commission: 14
Any attempt at abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in the executive and
legislative departments of the government. 15 (Citations omitted)
In Republic of the Philippines v. Herminio Harry Roque et al., 16 this court ruled in
favor of the petitioner and dismissed the petitions for declaratory relief filed by
respondents before the Quezon City Regional Trial Court against certain provisions
of the Human Security Act. In that case, the court discussed the necessity of the
requirement of an actual case or controversy:
Pertinently, a justiciable controversy refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory. Corollary thereto, by "ripening seeds" it is meant, not that sufficient

accrued facts may be dispensed with, but that a dispute may be tried at its
inception before it has accumulated the asperity, distemper, animosity, passion,
and violence of a full blown battle that looms ahead. The concept describes a state
of facts indicating imminent and inevitable litigation provided that the issue is not
settled and stabilized by tranquilizing declaration.
A perusal of private respondents' petition for declaratory relief would show that they
have failed to demonstrate how they are left to sustain or are in immediate danger
to sustain some direct injury as a result of the enforcement of the assailed
provisions of RA 9372. Not far removed from the factual milieu in the Southern
Hemisphere cases, private respondents only assert general interests as citizens,
and taxpayers and infractions which the government could prospectively commit if
the enforcement of the said law would remain untrammeled. As their petition would
disclose, private respondents' fear of prosecution was solely based on remarks of
certain government officials which were addressed to the general public. They,
however, failed to show how these remarks tended towards any prosecutorial or
governmental action geared towards the implementation of RA 9372 against them.
In other words, there was no particular, real or imminent threat to any of them." 17
(Emphasis supplied)
Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council: 18
Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory
actions characterized by "double contingency," where both the activity the
petitioners intend to undertake and the anticipated reaction to it of a public official
are merely theorized, lie beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by law
may be abused. Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights which are legally
demandable and enforceable. (Emphasis supplied; citations omitted) 19 cEHSTC
None of the petitioners in this case have been charged of any offense arising from
the law being challenged for having committed any act which they have committed
or are about to commit. No private party or any agency of government has invoked
any of the statutory provisions in question against any of the petitioners. The
invocations of the various constitutional provisions cited in petitions are in the
abstract. Generally, petitioners have ardently argued possible applications of
statutory provisions to be invoked for future but theoretical state of facts.

The blanket prayer of assailing the validity of the provisions cannot be allowed
without the proper factual bases emanating from an actual case or controversy.