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1. EN BANC Binay, Jr.

's First Term (2010 to 2013)

G.R. Nos. 217126-27, November 10, 2015 (a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract22 on September 28, 2010,23 without the required publication
OMBUDSMAN, Petitioner, and the lack of architectural design,24 and approved the release of funds therefor in the following
amounts as follows: (1) P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on
v. January 19, 2011;26 (3) P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March
28, 2011;28 (5) P40,908,750.61 on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30
COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY,
JR., Respondents. (b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding contract32
DECISION on August 18, 2011,33 without the required publication and the lack of architectural design,34 and
PERLAS-BERNABE, J.: approved the release of funds therefor in the following amounts as follows: (1) P182,325,538.97
on October 4, 2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20 on
"All government is a trust, every branch of government is a trust, and immemorially acknowledged December 12, 2011;37 (4) P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on
so to be[.]"1ChanRoblesVirtualawlibrary October 1, 2012;39

The Case (c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding contract41
Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner on September 13, 2012,42 without the required publication and the lack of architectural design,43
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of and approved the release of the funds therefor in the amounts of P32,398,220.0544 and
the Solicitor General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public P30,582,629.3045 on December 20, 2012;� and
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary Binay, Jr.'s Second Term (2013 to 2016)46
restraining order (TRO) against the implementation of the Joint Order4 dated March 10, 20,15 of
the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively (d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
suspending him and several other public officers and employees of the City Government of balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Makati, for six (6) months without pay; and (b) the Resolution5 dated March 20, 2015 of the CA, Building project in the amount of P27,443,629.97;47 and
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No.
139504. (e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 services covering the Makati Parking Building project in the amount of P429,011.48.49
(WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the preventive
suspension order, prompting the Ombudsman to file a supplemental petition9 on April 13, 2015. On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special
The Facts Panel).50 Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each
of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.52
On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching"
Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
employees of the City Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject preventive
violation of Republic Act No. (RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6)
Practices Act," in connection with the five (5) phases of the procurement and construction of the months without pay, during the pendency of the OMB Cases.53
Makati City Hall Parking Building (Makati Parking Building).13
The Ombudsman ruled that the requisites for the preventive suspension of a public officer
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to conduct are present, finding that:
a fact-finding investigation, submit an investigation report, and file the necessary complaint, if
warranted (1st Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the (a) the evidence of Binay, Jr., et al.'s guilt was strong given that
1st Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al, charging them
with six (6) administrative cases17 for Grave Misconduct, Serious Dishonesty, and Conduct (1) the losing bidders and members of the Bids and Awards Committee of Makati City
Prejudicial to the Best Interest of the Service, and six (6) criminal cases18 for violation of Section had attested to the irregularities attending the Makati Parking Building project;
3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public Documents (OMB (2) the documents on record negated the publication of bids; and
Cases).19 (3) the disbursement vouchers, checks, and official receipts showed the release of
funds; and
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities (b)
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati: (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service;

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(2) said charges, if proven to be true, warrant removal from public service under the of the amended and supplemental petition for contempt75 (petition for contempt) on March 19,
Revised Rules on Administrative Cases in the Civil Service (RRACCS), and 2015.76 Among others, Binay, Jr. accused the Ombudsman and other respondents therein for
(3) Binay, Jr., et al.'s respective positions give them access to public records and allow willfully and maliciously ignoring the TRO issued by the CA against the preventive suspension
them to influence possible witnesses; hence, their continued stay in office may prejudice order.77
the investigation relative to the OMB Cases filed against them.55 Consequently, the
Ombudsman directed the Department of Interior and Local Government (DILG), through In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement the 139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s
preventive suspension order against Binay, Jr., et al., upon receipt of the same.56 petition for contempt, directed the Ombudsman to file her comment thereto.79 The cases were set
for hearing of oral arguments on March 30 and 31, 2015.80
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff.57 The Proceedings Before the Court

The Proceedings Before the CA Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman
filed the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which
On even date, Binay, Jr. filed a petition for certiorari before the CA, docketed as CA-G.R. SP No. granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015
139453, seeking the nullification of the preventive suspension order, and praying for the issuance Resolution directing her to file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No.
of a TRO and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that he could not 139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer
be held administratively liable for any anomalous activity attending any of the five (5) phases of for a TRO, citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which states that
the Makati Parking Building project since: no injunctive writ could be issued to delay the Ombudsman's investigation unless there is prima
facie evidence that the subject matter thereof is outside the latter's jurisdiction;83 and (b) the CA's
(a) Phases I and II were undertaken before he was elected Mayor of Makati in 2010; and directive for the Ombudsman to comment on Binay, Jr.'s petition for contempt is illegal and
(b) Phases III to V transpired during his first term and that his re-election as City Mayor of Makati improper, considering that the Ombudsman is an impeachable officer, and therefore, cannot be
for a second term effectively condoned his administrative liability therefor, if any, thus rendering subjected to contempt proceedings.84
the administrative cases against him moot and academic.In any event, Binay, Jr. claimed that the
Ombudsman's preventive suspension order failed to show that the evidence of guilt presented In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
against him is strong, maintaining that he did not participate in any of the purported Constitution specifically grants the CA judicial power to review acts of any branch or
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear instrumentality of government, including the Office of the Ombudsman, in case of grave abuse of
and unmistakable right to hold public office, having won by landslide vote in the 2010 and 2013 discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this case
elections, and that, in view of the condonation doctrine, as well as the lack of evidence to when said office issued the preventive suspension order against him.86 Binay, Jr. posits that it
sustain the charges against him, his suspension from office would undeservedly deprive the was incumbent upon the Ombudsman to1 have been apprised of the condonation doctrine as this
electorate of the services of the person they have conscientiously chosen and voted into office.63 would have weighed heavily in determining whether there was strong evidence to warrant the
issuance of the preventive suspension order.87 In this relation, Binay, Jr. maintains that the CA
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the correctly enjoined the implementation of the preventive suspension order given his clear and
preventive suspension order through the DILG National Capital Region - Regional Director, unmistakable right to public office, and that it is clear that he could not be held administratively
Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati liable for any of the charges against him since his subsequent re-election in 2013 operated as a
City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the Makati condonation of any administrative offenses he may have committed during his previous term.88
City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. As regards the CA's order for the Ombudsman to comment on his petition for contempt, Binay, Jr.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Pe�a, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence, cannot be
(Pe�a, Jr.) who thereupon assumed office as Acting Mayor.64 removed from office except by way of impeachment, an action for contempt imposes the penalty
of fine and imprisonment, without necessarily resulting in removal from office. Thus, the fact that
At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay, the Ombudsman is an impeachable officer should not deprive the CA of its inherent power to
Jr.'s prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier punish contempt.89
that day.67 Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent
on its part to issue a TRO in view of the extreme urgency of the matter and seriousness of the Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it
issues raised, considering that if it were established that the acts subject of the administrative were held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of
cases against Binay, Jr. were all committed during his prior term, then, applying the condonation the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right
doctrine, Binay, Jr.'s re-election meant that he can no longer be administratively charged.69 The to the final relief prayed for, namely, the nullification of the preventive suspension order, in view of
CA then directed the Ombudsman to comment on Binay, Jr.'s petition for certiorari .70 the condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman
can hardly impose preventive suspension against Binay, Jr. given that his re-election in 2013 as
On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was being City Mayor of Makati condoned any administrative liability arising from anomalous activities
restrained and that since the preventive suspension order had already been served and relative to the Makati Parking Building project from 2007 to 2013.93 In this regard, the CA added
implemented, there was no longer any act to restrain.72 that, although there were acts which were apparently committed by Binay, Jr. beyond his first term
� namely, the alleged payments on July 3, July 4, and July 24, 2013,94 corresponding to the
On the same day, Binay, Jr. filed a petition for contempt,73� docketed as CA-G.R. SP No. services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police, based on the cases of Salalima v. Guingona, Jr.,95 and Mayor Garcia v. Mojica96 wherein the
and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or condonation doctrine was still applied by the Court although the payments were made after the
degrading the administration of justice.74 The Ombudsman and Department of Justice Secretary official's re-election, reasoning that the payments were merely effected pursuant to contracts
Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing

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executed before said re-election.97 To this, the CA added that there was no concrete evidence of A common requirement to both a petition for certiorari and a petition for prohibition taken under
Binay, Jr.'s participation for the alleged payments made on July 3, 4, and 24, 2013.98 Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and
adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:
In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes of judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
issuing preventive suspension orders. The Ombudsman also maintained that a reliance on the discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
condonation doctrine is a matter of defense, which should have been raised by Binay, Jr. before it speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file
during the administrative proceedings, and that, at any rate, there is no condonation because a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013.100 rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.
On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda.102 In compliance thereto, the xxxx
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104 Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or
Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy in the
ten (10) days from receipt of the notice. ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts r with certainty and praying that judgment be rendered commanding the
On July 15, 2015, both parties filed their respective comments to each other's memoranda.106 respondent to desist from further proceedings in the action or matter specified therein, or
Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of Comment,107 simply otherwise granting such incidental reliefs as law and justice may require.
stating that it was mutually agreed upon that the Office of the Ombudsman would file its
Memorandum, consistent with its desire to state its "institutional position."108 In her Memorandum x x x x (Emphases supplied)
and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among others, that this
Court abandon the condonation doctrine.109 In view of the foregoing, the case was deemed Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior
submitted for resolution.chanrobleslaw to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the ordinary
The Issues Before the Court course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court or
agency to correct any actual or perceived error attributed to it by the re-examination of the legal
Based on the parties' respective pleadings, and as raised during the oral arguments conducted and factual circumstances of the case.110
before this Court, the main issues to be resolved in seriatim are as follows:
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
 Whether or not the present petition, and not motions for reconsideration of the assailed remedies and the danger of failure of justice without the writ, that must usually determine the
CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
Ombudsman's plain, speedy, and adequate remedy; relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower
court or agency, x x x."111
 Whether or not the CA has subject matter jurisdiction over the main petition for certiorari
in CA-G.R. SP No. 139453; In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a petition
 Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI for prohibition.112 These are: (a) where the order is a patent nullity, as where the court a quo has
enjoining the implementation of a preventive suspension order issued by the no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised
Ombudsman; and passed upon by the lower court, or are the same as those raised and passed upon in the
lower court; (c) where there is an urgent necessity for the resolution of the question and any
 Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, further delay would prejudice the interests of the Government or of the petitioner or the subject
the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive matter of the action is perishable; (d) where, under the circumstances, a motion for
suspension order against Binay, Jr. based on the condonation doctrine; and reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and
 Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal. court are a nullity for lack of due process; (h) where the proceedings were ex parte or in which the
petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where
The Ruling of the Court public interest is involved.113

The petition is partly meritorious. In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first
time, the question on the authority of the CA - and of this Court, for that matter - to enjoin the
I. implementation of a preventive suspension order issued by the Office of the Ombudsman is put to
the fore. This case tests the constitutional and statutory limits of the fundamental powers of key
government institutions - namely, the Office of the Ombudsman, the Legislature, and the Judiciary

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- and hence, involves an issue of transcendental public importance that demands no less than a On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
careful but expeditious resolution. Also raised is the equally important issue on the propriety of the application for remedy may be heard against the decision or findings of the Ombudsman, with the
continuous application of the condonation doctrine as invoked by a public officer who desires exception of the Supreme Court on pure questions of law. This paragraph, which the Ombudsman
exculpation from administrative liability. As such, the Ombudsman's direct resort to certiorari and particularly relies on in arguing that the CA had no jurisdiction over the main CA-G.R. SP No.
prohibition before this Court, notwithstanding her failure to move for the prior reconsideration of 139453 petition, as it is supposedly this Court which has the sole jurisdiction to conduct a judicial
the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear what the phrase
justified.chanrobleslaw "application for remedy" or the word "findings" refers to; and (2) it does not specify what
procedural remedy is solely allowable to this Court, save that the same be taken only against a
II. pure question of law. The task then, is to apply the relevant principles of statutory construction to
resolve the ambiguity.
Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper
to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition for "The underlying principle of all construction is that the intent of the legislature should be sought in
certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's jurisdiction the words employed to express it, and that when found[,] it should be made to govern, x x x. If the
over the subject matter may be raised at any stage of the proceedings. The rationale is that words of the law seem to be of doubtful import, it may then perhaps become necessary to look
subject matter jurisdiction is conferred by law, and the lack of it affects the very authority of the beyond them in order to ascertain what was in the legislative mind at the time the law was
court to take cognizance of and to render judgment on the action.115 Hence, it should be enacted; what the circumstances were, under which the action was taken; what evil, if any, was
preliminarily determined if the CA indeed had subject matter jurisdiction over the main CA-G.R. SP meant to be redressed; x x x [a]nd where the law has contemporaneously been put into operation,
No. 139453 petition, as the same determines the validity of all subsequent proceedings relative and in doing so a construction has necessarily been put upon it, this construction, especially if
thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this Court to be followed for some considerable period, is entitled to great respect, as being very probably a true
heard on this issue,116 as he, in fact, duly submitted his opposition through his comment to the expression of the legislative purpose, and is not lightly to be overruled, although it is not
Ombudsman's Memorandum.117 That being said, the Court perceives no reasonable objection conclusive."124
against ruling on this issue.
As an aid to construction, courts may avail themselves of the actual proceedings of the legislative
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main body in interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA statute means, the meaning put to the provision during the legislative deliberations may be
6770, or the Ombudsman Act,118 which reads in full: adopted,125 albeit not controlling in the interpretation of the law.126

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an A. The Senate deliberations cited by the Ombudsman do not pertain to the second
investigation being conducted by the Ombudsman under this Act, unless there is a prima facie paragraph of Section 14, RA 6770.
evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the
Ombudsman. The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on
the matter of judicial review of her office's decisions or findings, is supposedly clear from the
No court shall hear any appeal or application for remedy against the decision or findings of the following Senate deliberations:127
Ombudsman, except the Supreme Court, on pure question of law.
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition
The subject provision may be dissected into two (2) parts. for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review or
appeal from the decision of the Ombudsman would only be taken not on a petition for review, but
The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme on certiorari.
Court119) from issuing a writ of injunction to delay an investigation being conducted by the Office
of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or proceeding The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or reverse the decision under review?
merely a provisional remedy for and as an incident in the main action."120 Considering the textual
qualifier "to delay," which connotes a suspension of an action while the main case remains Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of
pending, the "writ of injunction" mentioned in this paragraph could only refer to injunctions of the the Ombudsman would be almost conclusive if supported by substantial evidence. Second, we
provisional kind, consistent with the nature of a provisional injunctive relief. would not unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict
appeal procedure.
The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman has xxxx
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers, Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
Members of Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power to remedies available to a respondent, the respondent himself has the right to exhaust the
investigate any serious misconduct in office allegedly committed by officials removable by administrative remedies available to him?
impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.122 Note
that the Ombudsman has concurrent jurisdiction over certain administrative cases which are within Senator Angara. Yes, Mr. President, that is correct.
the jurisdiction of the regular courts or administrative agencies, but has primary jurisdiction to
investigate any act or omission of a public officer or employee who is under the jurisdiction of the Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Sandiganbayan.123 Court only on certiorari ?

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Senator Angara. On question of law, yes. xxxx

Senator Guingona. And no other remedy is available to him? The President. It is evident that there must be some final authority to render decisions. Should it
be the Ombudsman or should it be the Supreme Court?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has
Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential to be the Supreme Court to make the final determination.
appointee who is the respondent, if there is f no certiorari available, is the respondent given the
right to exhaust his administrative remedies first before the Ombudsman can take the appropriate The President. Then if that is so, we have to modify Section 17.
action?
Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law introduce an appropriate change during the period of Individual Amendments.
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review. xxxx

xxxx The President. All right. Is there any objection to the amendment inserting the word CERTIORARI
instead of "review"? [Silence] Hearing none, the same is approved.128
Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari ? Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the
evidence. "review or appeal from the decision of the Ombudsman would not only be taken on a petition for
review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara then
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I dwells on the purpose of changing the method of review from one of a petition for review to a
concur, that in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is a petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the amendment
matter of discretion on the part of the court, whether to give due course to the petition or dismiss it to the change in wording, from "petition for review" to "petition for certiorari" was approved.
outright. Is that not correct, Mr. President?
Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are
Senator Angara. That is absolutely correct, Mr. President nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this
provision, particularly its second paragraph, does not indicate what specific procedural remedy
Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the one should take in assailing a decision or finding of the Ombudsman; it only reveals that the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion remedy be taken to this Court based on pure questions of law. More so, it was even commented
amounting to lack of jurisdiction. Is that not the consequence, Mr. President. upon during the oral arguments of this case129 that there was no debate or clarification made on
the current formulation of the second paragraph of Section 14, RA 6770 per the available excerpts
Senator Angara. That is correct, Mr. President. of the Senate deliberations. In any case, at least for the above-cited deliberations, the Court finds
no adequate support to sustain the Ombudsman's entreaty that the CA had no subject matter
Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to jurisdiction over the main CA-G.R. SP No. 139453 petition.
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated. On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually
Senator Angara. Yes, Mr. President. reflects the approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court (fourth paragraph), and
Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a further, his comment on the conclusive nature of the factual findings of the Ombudsman, if
petition for review and a petition for certiorari ; because before, under the 1935 Constitution supported by substantial evidence (third paragraph):
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But under
the Constitution it is now by certiorari and the Supreme Court said that by this change, the court Section 27. Effectivity and Finality of Decisions.� (1) All provisionary orders of the Office of the
exercising judicial review will not inquire into the facts, into the evidence, because we will not go Ombudsman are immediately effective and executory.
deeply by way of review into the evidence on record but its authority will be limited to a
determination of whether the administrative agency acted without, or in excess of, jurisdiction, or A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman
committed a grave abuse of discretion. So, I assume that that is the purpose of this amendment, must be filed within five (5) days after receipt of written notice and shall be entertained only on any
Mr. President. of the following grounds:

Senator Angara. The distinguished Gentleman has stated it so well. (1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr.
President.

5
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy taken to
The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That the Supreme Court on "pure questions of law," whether under the 1964 Rules of Court or the 1997
only one motion for reconsideration shall be entertained. Rules of Civil Procedure:

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are Rule 45, 1964 Rules of Court
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable. RULE 45 Appeal from Court of Appeals to Supreme Court

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the xxxx
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the Section 2. Contents of Petition. � The petition shall contain a concise statement of the matters
motion for reconsideration in accordance with Rule 45 of the Rules of Court. involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought to
The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the
justice may require. (Emphasis and underscoring supplied) petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were received shall accompany the
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition petition.
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known
that under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
65 of the said Rules. However, it should be discerned that the Ombudsman Act was passed way appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of
back in 1989130 and, hence, before the advent of the 1997 Rules of Civil Procedure.131 At that the petition, shall demand from the Court of Appeals the elevation of the whole record of the case.
time, the governing 1964 Rules of Court,132 consistent with Section 27, RA 6770, referred to the (Emphasis and underscoring supplied)
appeal taken thereunder as a petition for certiorari , thus possibly explaining the remedy's textual
denomination, at least in the provision's final approved version: Rule 45, 1997 Rules of Civil Procedure

RULE 45 Appeal from Court of Appeals to Supreme Court


RULE 45 Appeal by Certiorari to the Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari , within Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration filed in judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
due time, and paying at the same time, to the clerk of said court the corresponding docketing fee. Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
The petition shall not be acted upon without proof of service of a copy thereof to the Court of Supreme Court a verified petition for review on certiorari. The petition may include an application
Appeals. (Emphasis supplied) for a writ of preliminary injunction or other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by
B. Construing the second paragraph of Section 14, RA 6770. verified motion filed in the same action or proceeding at any time during its pendency. (Emphasis
and underscoring supplied)
The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition for
of the provision. certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion
that defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any based on errors of jurisdiction, and not errors of judgment to which the classifications of (a)
appeal or application for remedy against the decision or findings of the Ombudsman, except the questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In fact,
Supreme Court, on pure question of law."��� ;cralawlawlibrary there is no procedural rule, whether in the old or new Rules, which grounds a Rule 65 petition on
pure questions of law. Indeed, it is also a statutory construction principle that the lawmaking body
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of cannot be said to have intended the establishment of conflicting and hostile systems on the same
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision subject. Such a result would render legislation a useless and idle ceremony, and subject the laws
or finding of the Ombudsman, and (b) "any application of remedy" (subject to the exception below) to uncertainty and unintelligibility.135 There should then be no confusion that the second
against the same. To clarify, the phrase "application for remedy," being a generally worded paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum,
provision, and being separated from the term "appeal" by the disjunctive "or",133 refers to any the appropriate construction of this Ombudsman Act provision is that all remedies against
remedy (whether taken mainly or provisionally), except an appeal, following the maxim generalia issuances of the Office of the Ombudsman are prohibited, except the above-stated Rule 45
verba sunt generaliter intelligenda: general words are to be understood in a general sense.134 By remedy to the Court on pure questions of law.
the same principle, the word "findings," which is also separated from the word "decision" by the
disjunctive "or", would therefore refer to any finding made by the Ombudsman (whether final or C. Validity of the second paragraph of Section 14, RA 6770.
provisional), except a decision.
Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
The subject provision, however, crafts an exception to the foregoing general rule. While the remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second procedure promulgated by this Court - can only be taken against final decisions or orders of lower
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision or courts,136 and not against "findings" of quasi-judicial agencies. As will be later elaborated upon,

6
Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a Rule 45 Since the constitution is intended for the observance of the judiciary and other departments of the
appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More significantly, by government and the judges are sworn to support its provisions, the courts are not at liberty to
confining the remedy to a Rule 45 appeal, the provision takes away the remedy of certiorari, overlook or disregard its commands or countenance evasions thereof. When it is clear , that a
grounded on errors of jurisdiction, in denigration of the judicial power constitutionally vested in statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare
courts. In this light, the second paragraph of Section 14, RA 6770 also increased this Court's that the constitution, and not the statute, governs in a case before them for judgment.
appellate jurisdiction, without a showing, however, that it gave its consent to the same. The
provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138 pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a
court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the
since it had the effect of increasing the appellate jurisdiction of the Court without its advice and court has no jurisdiction in the proceeding, and since it may determine whether or not it has
concurrence in violation of Section 30, Article VI of the 1987 Constitution.139 Moreover, this jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute.
provision was found to be inconsistent with Section 1, Rule 45 of the present 1997 Rules of
Procedure which, as above-intimated, applies only to a review of "judgments or final orders of the Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other rejected unless the jurisdiction of the court below or that of the appellate court is involved in which
courts authorized by law;" and not of quasi-judicial agencies, such as the Office of the case it may be raised at any time or on the court's own motion. The Court ex mero motu may take
Ombudsman, the remedy now being a Rule 43 appeal to the Court of Appeals. In Ruivivar v. cognizance of lack of jurisdiction at any point in the case where that fact is developed. The court
Office of the Ombudsman,140 the Court's ratiocinations and ruling in Fabian were recounted: has a clearly recognized right to determine its own jurisdiction in any proceeding.147 (Emphasis
supplied)
The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure D. Consequence of invalidity.
of the Office of the Ombudsman) on the availability of appeal before the Supreme Court to assail a
decision or order of the Ombudsman in administrative cases. In Fabian, we invalidated Section 27 In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr.
of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules implementing the Act) before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
insofar as it provided for appeal by certiorari under Rule 45 from the decisions or orders of the interlocutory order,148 hence, unappealable.149
Ombudsman in administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not
only of increasing the appellate jurisdiction of this Court without its advice and concurrence in In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari
violation of Section 30, Article VI of the Constitution; it was also inconsistent with Section 1, Rule against unappelable issuances150 of the Ombudsman should be filed before the CA, and not
45 of the Rules of Court which provides that a petition for review on certiorari shall apply only to a directly before this Court:
review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law." We pointedly In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension
said:chanRoblesvirtualLawlibrary order issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck 65 petition for certiorari filed by the public officer before the CA, the Court held that "[t]here being a
down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from finding of grave abuse of discretion on the part of the Ombudsman, it was certainly imperative for
quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65."152
the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under
the provisions of Rule 43.141 (Emphasis supplied) In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition for
certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or administrative case, the Court remarked that "petitioner employed the correct mode of review in
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of this case, i.e., a special civil action for certiorari before the Court of Appeals."154 In this relation, it
Section 27, RA 6770142 - attempts to effectively increase the Supreme Court's appellate stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction of
jurisdiction without its advice and concurrence,143 it is therefore concluded that the former the Supreme Court and the Court of Appeals, such petition should be initially filed with the Court of
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's Appeals in observance of the doctrine of hierarchy of courts." Further, the Court upheld Barata v.
posturing,144Fabian should squarely apply since the above-stated Ombudsman Act provisions Abalos, Jr.155 (June 6, 2001), wherein it was ruled that the remedy against final and
are in part materia in that they "cover the same specific or particular subject matter,"145 that is, unappealable orders of the Office of the Ombudsman in an administrative case was a Rule 65
the manner of judicial review over issuances of the Ombudsman. petition to the CA. The same verdict was reached in Ruivivar156 (September 16, 2008).

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction over
including all subsequent proceedings relative thereto, as the Ombudsman herself has developed, the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
the Court deems it proper to resolve this issue ex mero motu (on its own motion146). This objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO and
procedure, as was similarly adopted in Fabian, finds its bearings in settled case law: WPI against the implementation of the preventive suspension order, incidental to that main case.

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a III.
party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall
explain. From the inception of these proceedings, the Ombudsman has been adamant that the CA has no
jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in

7
conjunction with her office's independence under the 1987 Constitution. She advances the idea the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from the Constitution. Section 21 of RA No. 6770 provides:chanRoblesvirtualLawlibrary
judicial intervention,"157 particularly, "from injunctive reliefs traditionally obtainable from the Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
courts,"158 claiming that said writs may work "just as effectively as direct harassment or political shall have disciplinary authority over all elective and appointive officials of the Government and its
pressure would."159 subdivisions, instrumentalities, and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their subsidiaries, except over
A. The concept of Ombudsman independence. officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions,
Ombudsman: although not squarely falling under the broad powers granted [to] it by the Constitution and by RA
No. 6770, if these actions are reasonably in line with its official function and consistent with the law
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the and the Constitution.
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise be The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
appointed. (Emphasis supplied) misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical insulate the Office of the Ombudsman from the pressures and influence of officialdom and
underpinnings of the Office of the Ombudsman: partisan politics and from fear of external reprisal by making it an "independent" office, x x x.

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to xxxx
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
objective for lack of the political independence necessary for the effective performance of their government constitutional agency that is considered "a notch above other grievance-handling
function as government critic. investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers.162 (Emphasis and
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally- underscoring supplied)
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence
(PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the vis-a-vis the independence of the other constitutional bodies. Pertinently, the Court observed:
Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint or
motu proprio, any administrative act of any administrative agency, including any government- (1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the Commissions shares certain characteristics - they do not owe their existence to any act of
powers previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
He was given the exclusive authority to conduct preliminary investigation of all cases cognizable general terms, the framers of the Constitution intended that these 'independent' bodies be
by the Sandiganbayan, file the corresponding information, and control the prosecution of these insulated from political pressure to the extent that the absence of 'independence' would result in
cases. the impairment of their core functions"163;cralawlawlibrary

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by (2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and independence and flexibility needed in the discharge of their constitutional duties. The imposition
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II of restrictions and constraints on the manner the independent constitutional offices allocate and
and the standard of accountability in public service under Section 1, Article XI of the 1987 utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not
Constitution. These provisions read:chanRoblesvirtualLawlibrary only [of] the express mandate of the Constitution, but especially as regards the Supreme Court, of
Section 27. The State shall maintain honesty and integrity in the public service and take positive the independence and separation of powers upon which the entire fabric of our constitutional
and effective measures against graft and corruption. system is based";164 and

Section 1. Public office is a public trust. Public officers and employees must, at all times, be (3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
act with patriotism and justice, and lead modest lives.161 (Emphasis supplied) Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom from
More significantly, Gonzales III explained the broad scope of the office's mandate, and in the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on the
correlation, the impetus behind its independence: Commission on Audit highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure."165
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned
to be the "protector of the people" against the inept, abusive, and corrupt in the Government, to At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of
function essentially as a complaints and action bureau. This constitutional vision of a Philippine the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard or supervision of the Executive Department:
against the ills, abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI of

8
[T]he independent constitutional commissions have been consistently intended by the framers to B. The first paragraph of Section 14, RA
be independent from executive control or supervision or any form of political influence. At least 6770 in light of the powers of Congress and the
insofar as these bodies are concerned, jurisprudence is not scarce on how the "independence" Court under the 1987 Constitution.
granted to these bodies prevents presidential interference.
The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the first paragraph of Section 14, RA 6770 textually prohibits courts from extending
that the Constitutional Commissions, which have been characterized under the Constitution as provisional injunctive relief to delay any investigation conducted by her office. Despite the usage of
"independent," are not under the control of the President, even if they discharge functions that are the general phrase "[n]o writ of injunction shall be issued by any court," the Ombudsman herself
executive in nature. The Court declared as unconstitutional the President's act of temporarily concedes that the prohibition does not cover the Supreme Court.170 As support, she cites the
appointing the respondent in that case as Acting Chairman of the [Commission on Elections] following Senate deliberations:
"however well-meaning" it might have been.
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the just like to inquire for the record whether below the Supreme Court, it is understood that there is
tenure of the commissioners of the independent Commission on Human Rights could not be no injunction policy against the Ombudsman by lower courts. Or, is it necessary to have a special
placed under the discretionary power of the President. paragraph for that?

xxxx Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior -
but is similar in degree and kind - to the independence similarly guaranteed by the Constitution to Senator Maceda. In which case, I think that the intention, this being one of the highest
the Constitutional Commissions since all these offices fill the political interstices of a republican constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an injunction
democracy that are crucial to its existence and proper functioning.166 (Emphases and from the Supreme Court is, of course, in order but no lower courts should be allowed to interfere.
underscoring supplied) We had a very bad experience with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural Resources. Injunctions are issued right
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy and left by RTC judges all over the country.
or the Special Prosecutor, may be removed from office by the President for any of the grounds
provided for the removal of the Ombudsman, and after due process," partially unconstitutional The President. Why do we not make an express provision to that effect?
insofar as it subjected the Deputy Ombudsman to the disciplinary authority of the President for
violating the principle of independence. Meanwhile, the validity of Section 8 (2), RA 6770 was Senator Angara. We would welcome that, Mr. President.
maintained insofar as the Office of the Special Prosecutor was concerned since said office was
not considered to be constitutionally within the Office of the Ombudsman and is, hence, not The President. No [writs of injunction] from the trial courts other than the Supreme Court.
entitled to the independence the latter enjoys under the Constitution.167
Senator Maceda. I so move, Mr. President, for that amendment.
As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things: The President. Is there any objection? [Silence] Hearing none, the same is approved.171

First: creation by the Constitution, which means that the office cannot be abolished, nor its Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the Supreme
the Constitution itself allows, or an amendment thereto is made;cralawlawlibrary Court's power of judicial review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review over matters pertaining
Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to to ongoing investigations by the Office of the Ombudsman. Respecting the CA, however, the
use or dispose of [its] funds for purposes germane to [its] functions;168hence, its budget cannot Ombudsman begs to differ.172
be strategically decreased by officials of the political branches of government so as to impair said
functions; and With these submissions, it is therefore apt to examine the validity of the first paragraph of Section
14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of
Third: insulation from executive supervision and control, which means that those within the ranks injunction to enjoin an Ombudsman investigation. That the constitutionality of this provision is the
of the office can only be disciplined by an internal authority. lis mota of this case has not been seriously disputed. In fact, the issue anent its constitutionality
was properly raised and presented during the course of these proceedings.173 More importantly,
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman from its resolution is clearly necessary to the complete disposition of this case.174
political harassment and pressure, so as to free it from the "insidious tentacles of politics."169
In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the
That being the case, the concept of Ombudsman independence cannot be invoked as basis to "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are executive, the legislative[,] and the judicial departments of the government."176 The constitutional
apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all. demarcation of the three fundamental powers of government is more commonly known as the
Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that is, principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the
a provisional writ of injunction against a preventive suspension order - clearly strays from the Court held that "there is a violation of the separation of powers principle when one branch of
concept's rationale of insulating the office from political harassment or pressure. government unduly encroaches on the domain of another."178 In particular, "there is a violation of

9
the principle when there is impermissible (a) interference with and/or (b) assumption of another directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of
department's functions."179 appeals, and should also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed
Court and all such lower courts: with the Regional Trial Court, and those against the latter, with the Court of Appeals.189

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as When a court has subject matter jurisdiction over a particular case, as conferred unto it by law,
may be established by law. said court may then exercise its jurisdiction acquired over that case, which is called judicial power.

Judicial power includes the duty of the courts of justice to settle actual controversies involving Judicial power, as vested in the Supreme Court and all other courts established by law, has been
rights which are legally demandable and enforceable, and to determine whether or not there has defined as the "totality of powers a court exercises when it assumes jurisdiction and hears and
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any decides a case."190 Under Section 1, Article VIII of the 1987 Constitution, it includes "the duty of
branch or instrumentality of the Government. 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
This Court is the only court established by the Constitution, while all other lower courts may be amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
established by laws passed by Congress.� Thus, through the passage of Batas Pambansa Bilang Government."
(BP) 129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals,181 the
Regional Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the
Circuit Trial Courts183 were established. Later, through the passage of RA 1125,184 and 1987 Constitution:
Presidential Decree No. (PD) 1486,185 the Court of Tax Appeals, and the Sandiganbayan were
respectively established. The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents a
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987 Constitution broadening of f judicial power to enable the courts of justice to review what was before forbidden
empowers Congress to define, prescribe, and apportion the jurisdiction of all courts, except that it territory, to wit, the discretion of the political departments of the government.
may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5186 of
the same Article: As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power
to rule upon even the wisdom of the decisions of the executive and the legislature and to declare
Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction their acts invalid for lack or excess of jurisdiction because they are tainted with grave abuse of
of the various courts but may not deprive the Supreme Court of its jurisdiction over cases discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very
enumerated in Section 5 hereof. elastic phrase that can expand or contract according to the disposition of the judiciary.192

xxx Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired
over a particular case conforms to the limits and parameters of the rules of procedure duly
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter promulgated by this Court. In other words, procedure is the framework within which judicial power
of an action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction is exercised. In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power
was defined as "the authority 'to hear and determine cases of the general class to which the or authority of the court over the subject matter existed and was fixed before procedure in a given
proceedings in question belong and is conferred by the sovereign authority which organizes the cause began. Procedure does not alter or change that power or authority; it simply directs the
court and defines its powers.'" manner in which it shall be fully and justly exercised.� To be sure, in certain cases, if that power
is not exercised in conformity with the provisions of the procedural law, purely, the court
Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of attempting to exercise it loses the power to exercise it legally. This does not mean that it loses
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and the jurisdiction of the subject matter."194
trial courts, through the passage of BP 129, as amended.
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition for constitutional design, vested unto Congress, the power to promulgate rules concerning the
certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended: protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts
belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo Section 5. The Supreme Court shall have the following powers:
warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction[.]
xxxx
Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrent
with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
of these courts' jurisdiction over petitions for certiorari, the doctrine of hierarchy of courts should legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
be followed. In People v. Cuaresma,188 the doctrine was explained as follows: 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
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
writs an absolute, unrestrained freedom of choice of the court to which application therefor will be (Emphases and underscoring supplied)

10
the same Rule enumerates the grounds for its issuance. Meanwhile, under Section 5207 thereof,
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule- a TRO may be issued as a precursor to the issuance of a writ of preliminary injunction under
making authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly certain procedural parameters.
subjected to a power-sharing scheme with Congress.198 As it now stands, the 1987 Constitution
textually altered the old provisions by deleting the concurrent power of Congress to amend the The power of a court to issue these provisional injunctive reliefs coincides with its inherent power
rules, thus solidifying in one body the Court's rule-making powers, in line with the Framers' vision to issue all auxiliary writs, processes, and other means necessary to carry its acquired jurisdiction
of institutionalizing a "[s]tronger and more independent judiciary."199 into effect under Section 6, Rule 135 of the Rules of Court which reads:

The records of the deliberations of the Constitutional Commission would show200 that the Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court
Framers debated on whether or not the Court's rule-making powers should be shared with or judicial officer, all auxiliary writs, f processes and other means necessary to carry it into effect
Congress. There was an initial suggestion to insert the sentence "The National Assembly may may be employed by such court or officer; and if the procedure to be followed in the exercise of
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court", such jurisdiction is not specifically pointed out by law208 or by these rules, any suitable process or
right after the phrase "Promulgate rules concerning the protection and enforcement of mode of proceeding may be adopted which appears comfortable to the spirit of the said law or
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice rules.ChanRoblesVirtualawlibrary
of law, the integrated bar, and legal assistance to the underprivileged^" in the enumeration of
powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or
former sentence and, instead, after the word "[underprivileged," place a comma (,) to be followed jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
by "the phrase with the concurrence of the National Assembly." Eventually, a compromise jurisdiction"210 over "decisions, orders or resolutions of the RTCs in local tax cases originally
formulation was reached wherein (a) the Committee members agreed to Commissioner Aquino's decided or resolved by them in the exercise of their original or appellate jurisdiction,"211 the Court
proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said ruled that said power "should coexist with, and be a complement to, its appellate jurisdiction to
rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner review, by appeal, the final orders and decisions of the RTC, in order to have complete
Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the National supervision over the acts of the latter:"212
Assembly." The changes were approved, thereby leading to the present lack of textual reference
to any form of Congressional participation in Section 5 (5), Article VIII, supra. The prevailing A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise
consideration was that "both bodies, the Supreme Court and the Legislature, have their inherent it effectively, to make all orders that ; will preserve the subject of the action, and to give effect to
powers."201 the final determination of the appeal. It carries with it the power to protect that jurisdiction and to
make the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction,
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning has authority to control all auxiliary and incidental matters necessary to the efficient and proper
pleading, practice, and procedure. As pronounced in Echegaray: exercise of that jurisdiction. For this purpose, it may, when necessary, prohibit or restrain the
performance of any act which might interfere with the proper exercise of its rightful jurisdiction in
The rule making power of this Court was expanded. This Court for the first time was given the cases pending before it.213 (Emphasis supplied)
power to promulgate rules concerning the protection and enforcement of constitutional rights. The
Court was also r granted for the first time the power to disapprove rules of procedure of special In this light, the Court expounded on the inherent powers of a court endowed with subject matter
courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power jurisdiction:
of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In
fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this [A] court which is endowed with a particular jurisdiction should have powers which are necessary
Court with Congress, more so with the Executive.202 (Emphasis and underscoring supplied) to enable it to act effectively within such jurisdiction. These should be regarded as powers which
are inherent in its jurisdiction and the court must possess them in order to enforce its rules of
Under its rule-making authority, the Court has periodically passed various rules of procedure, practice and to suppress any abuses of its process and to t defeat any attempted thwarting of
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural such process.
remedies needed for the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary injunction were thus provided. x x x x�cralawlawlibrary

A temporary restraining order and a writ of preliminary injunction both constitute temporary Indeed, courts possess certain inherent powers which may be said to be implied from a general
measures availed of during the pendency of the action. They are, by nature, ancillary because grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are
they are mere incidents in and are dependent upon the result of the main action. It is well-settled such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are
that the sole object of a temporary restraining order or a writ of preliminary injunction, whether essential to the existence, dignity and functions of the courts, as well as to the due administration
prohibitory or mandatory, is to preserve the status quo203 until the merits of the case can be of justice; or are directly appropriate, convenient and suitable to the execution of their granted
heard. They are usually granted when it is made to appear that there is a substantial controversy powers; and include the power to maintain the court's jurisdiction and render it effective in behalf
between the parties and one of them is committing an act or threatening the immediate of the litigants.214 (Emphases and underscoring supplied)
commission of an act that will cause irreparable injury or destroy the status quo of the controversy
before a full hearing can be had on the merits of the case. In other words, they are preservative Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
remedies for the protection of substantive rights or interests, and, hence, not a cause of action in principle, articulated way back in the 1936 case of Angara, that "where a general power is
itself, but merely adjunct to a main suit.204 In a sense, they are regulatory processes meant to conferred or duty enjoined, every particular power necessary for the exercise of the one or the
prevent a case from being mooted by the interim acts of the parties. performance of the other is also conferred."215

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal
and a WPI. A preliminary injunction is defined under Section 1,205 Rule 58, while Section 3206 of with diverse matters over which they are thought to have intrinsic authority like procedural [rule-

11
making] and general judicial housekeeping. To justify the invocation or exercise of inherent matters of procedure which belong exclusively within the province of this Court. Rule 58 of the
powers, a court must show that the powers are reasonably necessary to achieve the specific Rules of Court did not create, define, and regulate a right but merely prescribed the means of
purpose for which the exercise is sought. Inherent powers enable the judiciary to accomplish its implementing an existing right220 since it only provided for temporary reliefs to preserve the
constitutionally mandated functions."216 applicant's right in esse which is threatened to be violated during the course of a pending litigation.
In the case of Fabian,211 it was stated that:
In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which
prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right
license pending appeal,218 the Supreme Court of Kentucky held: to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary procedure.ChanRoblesVirtualawlibrary
for the administration of justice within the scope of their jurisdiction. x x x [W]e said while
considering the rule making power and the judicial power to be one and the same that ". . . the Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative
grant of judicial power [rule making power] to the courts by the constitution carries with it, as a power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National
necessary incident, the right to make that power effective in the administration of justice." Power Corporation from Payment of Filing/ Docket Fees;222 (b) Re: Petition for Recognition of the
(Emphases supplied) Exemption of the Government Service Insurance System (GSIS) from Payment of Legal Fees;223
and (c) Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-
Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an Cortes224 While these cases involved legislative enactments exempting government owned and
exercise of the court's inherent power, and to this end, stated that any attempt on the part of controlled corporations and cooperatives from paying filing fees, thus, effectively modifying Rule
Congress to interfere with the same was constitutionally impermissible: 141 of the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that the prerogative to
amend, repeal or even establish new rules of procedure225 solely belongs to the Court, to the
It is a result of this foregoing line of thinking that we now adopt the language framework of 28 exclusion of the legislative and executive branches of government. On this score, the Court
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having described its authority to promulgate rules on pleading, practice, and procedure as exclusive and
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, "[o]ne of the safeguards of [its] institutional independence."226
inherent power to do all things reasonably necessary to the administration of justice in the case
before it. In the exercise of this power, a court, when necessary in order to protect or preserve the That Congress has been vested with the authority to define, prescribe, and apportion the
subject matter of the litigation, to protect its jurisdiction and to make its judgment effective, may jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create statutory
grant or issue a temporary injunction in aid of or ancillary to the principal action. courts under Section 1, Article VIII supra, does not result in an abnegation of the Court's own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII
The control over this inherent judicial power, in this particular instance the injunction, is exclusively supra. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
within the constitutional realm of the courts. As such, it is not within the purview of the legislature distinct, each to be preserved under its own sphere of authority. When Congress creates a court
to grant or deny the power nor is it within the purview of the legislature to shape or fashion and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the
circumstances under which this inherently judicial power may be or may not be granted or denied. Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman misconceives,227 because it does not define,
This Court has historically recognized constitutional limitations upon the power of the legislature to prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases; the
interfere with or to inhibit the performance of constitutionally granted and inherently provided certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP 129
judicial functions, x x x which were not shown to have been repealed. Instead, through this provision, Congress interfered
with a provisional remedy that was created by this Court under its duly promulgated rules of
xxxx procedure, which utility is both integral and inherent to every court's exercise of judicial power.
Without the Court's consent to the proscription, as may be manifested by an adoption of the same
We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a as part of the rules of procedure through an administrative circular issued therefor, there thus,
cause of action, has, as incidental to its general jurisdiction, inherent power to do all things stands to be a violation of the separation of powers principle.
reasonably necessary f to the administration of justice in the case before it. . ." This includes the
inherent power to issue injunctions. (Emphases supplied) In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute constitutional allocation of powers; it also practically dilutes a court's ability to carry out its
does not necessarily mean that it could control the appellate judicial proceeding: functions. This is so since a particular case can easily be mooted by supervening events if no
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
However, the fact that the legislature statutorily provided for this appeal does not give it the right to court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory.
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action Indeed, the force of judicial power, especially under the present Constitution, cannot be enervated
has ended and the right to appeal arises the legislature is void of any right to control a subsequent due to a court's inability to regulate what occurs during a proceeding's course. As earlier intimated,
appellate judicial proceeding. The judicial rules have come into play and have preempted the when jurisdiction over the subject matter is accorded by law and has been acquired by a court, its
field.219 (Emphasis supplied) exercise thereof should be undipped. To give true meaning to the judicial power contemplated by
the Framers of our Constitution, the Court's duly promulgated rules of procedure should therefore
With these considerations in mind, the Court rules that when Congress passed the first paragraph remain unabridged, this, even by statute. Truth be told, the policy against provisional injunctive
of Section 14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO writs in whatever variant should only subsist under rules of procedure duly promulgated by the
and/or WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon this Court given its sole prerogative over the same.
Court's constitutional rule-making authority. Clearly, these issuances, which are, by nature,
provisional reliefs and auxiliary writs created under the provisions of the Rules of Court, are

12
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors JUSTICE LEONEN:
the foregoing observations: In fact, it originated as an equitable remedy, is that not correct?

JUSTICE LEONEN: ACTING SOLICITOR GENERAL HILBAY:


Okay. Now, would you know what rule covers injunction in the Rules of Court? Correct, Your Honor.

ACTING SOLICITOR GENERAL HILBAY: JUSTICE LEONEN:


Rule 58, Your Honor. In order to preserve the power of a court so that at the end of litigation, it will not be rendered moot
and academic, is that not correct?
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under ACTING SOLICITOR GENERAL HILBAY:
the rubric of what is called provisional remedies, our resident expert because Justice Peralta is not Correct, Your Honor.
here so Justice Bersamin for a while. So provisional remedy you have injunction, x x x.
JUSTICE LEONEN:
xxxx In that view, isn't Section 14, first paragraph, unconstitutional?

JUSTICE LEONEN: ACTING SOLICITOR GENERAL HILBAY:


Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, No, Your Honor.
if you have a copy of the Constitution, can you please read that provision? Section 5, Article VIII
the Judiciary subparagraph 5, would you kindly read that provision? xxxx

ACTING SOLICTOR GENERAL HILBAY. JUSTICE LEONEN.


"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
practice and procedure in all courts..."
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all
courts. This is the power, the competence, the jurisdiction of what constitutional organ? JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
ACTING SOLICITOR GENERAL HILBAY: supplemental pleading called the bill of t particular [s]? It cannot, because that's part of
The Supreme Court, Your Honor. procedure...

JUSTICE LEONEN: ACTING SOLICITOR GENERAL HILBAY:


The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been That is true.
discussed with you by my other colleagues, is that not correct?
JUSTICE LEONEN
ACTING SOLICITOR GENERAL HILBAY: ...or for that matter, no Court shall act on a Motion to Quash, is that not correct?
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: Correct.
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
JUSTICE LEONEN:
ACTING SOLICITOR GENERAL HILBAY: So what's different with the writ of injunction?
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was
On the other hand, the power to promulgate rules is with the Court, is that not correct? created by Congress. In the absence of jurisdiction... (interrupted)

ACTING SOLICITOR GENERAL HILBAY: JUSTICE LEONEN:


Correct, Your Honor. No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular court,
JUSTICE LEONEN: is that not correct?
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in
an ordinary case? ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court...
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor. JUSTICE LEONEN:

13
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A Preventive suspension is merely a preventive measure, a preliminary step in an administrative
rule of procedure and the Rules of Court, is that not correct? investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper
ACTING SOLICITOR GENERAL HILBAY: with records which may be vital in the prosecution of the case against him. If after such
Yes, Your Honor. investigation, the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
JUSTICE LEONEN: penalty.
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a
particular injunction in a court, is that not correct? That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV
of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order
ACTING SOLICITOR GENERAL HILBAY: No. 292) and other Pertinent Civil Service Laws.
Correct, Your Honor. Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary
xxxx228 (Emphasis supplied) Not being a penalty, the period within which one is under preventive suspension is not considered
part of the actual penalty of suspension. So Section 25 of the same Rule XIV
In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is through provides:chanRoblesvirtualLawlibrary
the Constitution that the fundamental powers of government are established, limited and defined, Section 25. The period within which a public officer or employee charged is placed under
and by which these powers are distributed among the several departments. The Constitution is the preventive suspension shall not be considered part of the actual penalty of suspension imposed
basic and paramount law to which all other laws must conform and to which all persons, including upon the employee found guilty.232 (Emphases supplied)ChanRoblesVirtualawlibrary
the highest officials of the land, must defer." It would then follow that laws that do not conform to
the Constitution shall be stricken down for being unconstitutional.230 The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:
However, despite the ostensible breach of the separation of powers principle, the Court is not
oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well as Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend
other statutory provisions of similar import. Thus, pending deliberation on whether or not to adopt any officer or employee under his authority pending an investigation, if in his judgment the
the same, the Court, under its sole prerogative and authority over all matters of procedure, deems evidence of guilt is strong, and (a) the charge against such officer or employee involves
it proper to declare as ineffective the prohibition against courts other than the Supreme Court from dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges
issuing provisional injunctive writs to enjoin investigations conducted by the Office of the would warrant removal from the service; or (c) the respondent's continued stay in office may
Ombudsman, until it is adopted as part of the rules of procedure through an administrative circular prejudice the case filed against him.
duly issued therefor.
The preventive suspension shall continue until the case is terminated by the Office of the
Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Ombudsman but not more than six (6) months, without pay, except when the delay in the
Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the authority disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition
to issue the questioned injunctive writs enjoining the implementation of the preventive suspension of the respondent, in which case the period of such delay shall not be counted in computing the
order against Binay, Jr. At the risk of belaboring the point, these issuances were merely ancillary period of suspension herein provided. (Emphasis and underscoring supplied)
to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP
129, as amended, and which it had already acquired over the main CA-G.R. SP No. 139453 case. In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of
an order of preventive suspension pending an investigation, namely:
IV.
(1) The evidence of guilt is strong; and
The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in
issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a (2) Either of the following circumstances co-exist with the first
persisting objection to the validity of said injunctive writs. For its proper analysis, the Court first requirement:chanRoblesvirtualLawlibrary
provides the context of the assailed injunctive writs. (a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance
of duty;cralawlawlibrary
A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
(b) The charge would warrant removal from the service; or
By nature, a preventive suspension order is not a penalty but only a preventive measure. In
Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its (c) The respondent's continued stay in office may prejudice the case filed against
purpose is to prevent the official to be suspended from using his position and the powers and him.233ChanRoblesVirtualawlibrary
prerogatives of his office to influence potential witnesses or tamper with records which may be
vital in the prosecution of the case against him: B. The basis of the CA's injunctive writs is the condonation doctrine.

Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
is readily cognizable as they have different ends sought to be achieved. basis for the issuance of the assailed injunctive writs.

14
The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based second term, or on October 6, 1956, the Acting Provincial Governor filed administrative charges
on the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court before the Provincial Board of Nueva Ecija against him for grave abuse of authority and usurpation
emphasized that "if it were established in the CA that the acts subject of the administrative of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on December 18
complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable for the acts
jurisprudence, he can no longer be administratively charged."235 Thus, the Court, contemplating charged against him since they were committed during his previous term of office, and therefore,
the application of the condonation doctrine, among others, cautioned, in the said case, that "it invalid grounds for disciplining him during his second term. The Provincial Board, as well as the
would have been more prudent for [the appellate court] to have, at the very least, on account of Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and when the case
the extreme urgency of the matter and the seriousness of the issues raised in the certiorari reached this Court on appeal, it recognized that the controversy posed a novel issue - that is,
petition, issued a TRO x x x"236 during the pendency of the proceedings. whether or not an elective official may be disciplined for a wrongful act committed by him during
his immediately preceding term of office.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the preventive American authorities and "found that cases on the matter are conflicting due in part, probably, to
suspension order, finding that the Ombudsman can hardly impose preventive suspension against differences in statutes and constitutional provisions, and also, in part, to a divergence of views
Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any administrative with respect to the question of whether the subsequent election or appointment condones the prior
liability arising from anomalous activities relative to the Makati Parking Building project from 2007 misconduct."248Without going into the variables of these conflicting views and cases, it proceeded
to 2013.238 Moreover, the CA observed that although there were acts which were apparently to state that:
committed by Binay, Jr. beyond his first term , i.e., the alleged payments on July 3, 4, and 24,
2013,239 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held The weight of authorities x x x seems to incline toward the rule denying the right to remove one
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,240 and Mayor from office because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis
Garcia v. Mojica,241 wherein the condonation dobtrine was applied by the Court although the and underscoring supplied)
payments were made after the official's election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.242 The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
The Ombudsman contends that it was inappropriate for the CA to have considered the which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
condonation doctrine since it was a matter of defense which should have been raised and passed him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
upon by her office during the administrative disciplinary proceedings.243 However, the Court arguments of this case, at least seventeen (17) states in the US have abandoned the condonation
agrees with the CA that it was not precluded from considering the same given that it was material doctrine.250 The Ombudsman aptly cites several rulings of various US State courts, as well as
to the propriety of according provisional injunctive relief in conformity with the ruling in Governor literature published on the matter, to demonstrate the fact that the doctrine is not uniformly applied
Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since condonation was duly across all state jurisdictions. Indeed, the treatment is nuanced:
raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,244 the CA did not err in passing
upon the same. Note that although Binay, Jr. secondarily argued that the evidence of guilt against (1) For one, it has been widely recognized that the propriety of removing a public officer from his
him was not strong in his petition in CA-G.R. SP No. 139453,245 it appears that the CA found that current term or office for misconduct which he allegedly committed in a prior term of office is
the application of the condonation doctrine was already sufficient to enjoin the implementation of governed by the language of the statute or constitutional provision applicable to the facts of a
the preventive suspension order. Again, there is nothing aberrant with this since, as remarked in particular case (see In Re Removal of Member of Council Coppola).251 As an example, a Texas
the same case of Governor Garcia, Jr., if it was established that the acts subject of the statute, on the one hand, expressly allows removal only for an act committed during a present
administrative complaint were indeed committed during Binay, Jr.'s prior term, then, following the term: "no officer shall be prosecuted or removed from office for any act he may have committed
condonation doctrine, he can no longer be administratively charged. In other words, with prior to his election to office" (see State ex rel. Rowlings v. Loomis).252 On the other hand, the
condonation having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, Supreme Court of Oklahoma allows removal from office for "acts of commission, omission, or
the CA deemed it unnecessary to determine if the evidence of guilt against him was strong, at neglect committed, done or omitted during a previous or preceding term of office" (see State v.
least for the purpose of issuing the subject injunctive writs. Bailey)253 Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance of
Court now proceeds to determine if the CA gravely abused its discretion in applying the malfeasance in office" and thereby declared that, in the absence of clear legislative language
condonation doctrine. making, the word "office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
C. The origin of the condonation doctrine. County)254 Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that
the phrase "in office" in its state constitution was a time limitation with regard to the grounds of
Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness removal, so that an officer could not be removed for misbehaviour which occurred; prior to the
of an offense, [especially] by treating the offender as if there had been no offense."246 taking of the office (see Commonwealth v. Rudman)255 The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to hold an office resulted
The condonation doctrine - which connotes this same sense of complete extinguishment of liability from the commission of certain offenses, and at once rendered him unfit to continue in office,
as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential creation that adding the fact that the officer had been re-elected did not condone or purge the offense (see
originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual), State ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Apellate Division,
which was therefore decided under the 1935 Constitution. Fourth Department, the court construed the words "in office" to refer not to a particular term of
office but to an entire tenure; it stated that the whole purpose of the legislature in enacting the
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, statute in question could easily be lost sight of, and the intent of the law-making body be thwarted,
sometime in November 1951, and was later re-elected to the same position in 1955. During his

15
if an unworthy official could not be removed during one term for misconduct for a previous one Offenses committed, or acts done, during previous term are generally held not to furnish cause for
(Newman v. Strobel).257 removal and this is especially true where the constitution provides that the penalty in proceedings
for removal shall not extend beyond the removal from office, and disqualification from holding
(2) For another, condonation depended on whether or not the public officer was a successor in the office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs.
same office for which he has been administratively charged. The "own-successor theory," which is State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs.
recognized in numerous States as an exception to condonation doctrine, is premised on the idea Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State
that each term of a re-elected incumbent is not taken as separate and distinct, but rather, vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
regarded as one continuous term of office. Thus, infractions committed in a previous term are The underlying theory is that each term is separate from other terms x x x.272
grounds for removal because a re-elected incumbent has no prior term to speak of258 (see
Attorney-General v. Tufts;259State v. Welsh;260Hawkins v. Common Council of Grand Second, an elective official's re-election serves as a condonation of previous misconduct, thereby
Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263 cutting the right to remove him therefor; and

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in [T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the
cases where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty,
the public officer charged with malversation of public funds was denied the defense of 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.273 (emphasis supplied)
condonation by the Supreme Court of Minnesota, observing that "the large sums of money illegally
collected during the previous years are still retained by him." In State ex rel. Beck v. Harvey265 Third, courts may not deprive the electorate, who are assumed to have known the life and
the Supreme Court of Kansas ruled that "there is no necessity" of applying the condonation character of candidates, of their right to elect officers:
doctrine since "the misconduct continued in the present term of office[;] [thus] there was a duty
upon defendant to restore this money on demand of the county commissioners." Moreover, in As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held that "insofar as (NS) 553 �
nondelivery and excessive prices are concerned, x x x there remains a continuing duty on the part The Court should never remove a public officer for acts done prior to his present term of office. To
of the defendant to make restitution to the country x x x, this duty extends into the present term, do otherwise would be to deprive the people of their right to elect their officers. When the people
and neglect to discharge it constitutes misconduct." have elected a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of
a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent exegesis the people.274 (Emphases supplied)
to show that Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper. The notable cases on condonation following Pascual are as follows:

At any rate, these US cases are only of persuasive value in the process of this Court's decision- (1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation
making. "[They] are not relied upon as precedents, but as guides of interpretation."267 Therefore, doctrine, thereby quoting the above-stated passages from Pascual in verbatim.
the ultimate analysis is on whether or not the condonation doctrine, as espoused in Pascual, and
carried over in numerous cases after, can be held up against prevailing legal norms. Note that the (2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the
doctrine of stare decisis does not preclude this Court from revisiting existing doctrine. As adjudged condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
in the case of Belgica, the stare decisis rule should not operate when there are powerful different from an administrative case in that the former involves the People of the Philippines as a
countervailing considerations against its application.268 In other words, stare decisis becomes an community, and is a public wrong to the State at large; whereas, in the latter, only the populace of
intractable rule only when circumstances exist to preclude reversal of standing precedent.269 As the constituency he serves is affected. In addition, the Court noted that it is only the President who
the Ombudsman correctly points out, jurisprudence, after all, is not a rigid, atemporal abstraction; may pardon a criminal offense.
it is an organic creature that develops and devolves along with the society within which it
thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can decide, we can (3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987
undecide."271 Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the proceedings.
legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935
Constitution, which dated provisions do not reflect the experience of the Filipino People under the (4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course, the condonation doctrine by stating that the same is justified by "sound public policy." According to the
sheer impact of the condonation doctrine on public accountability, calls for Pascual's judicious re- Court, condonation prevented the elective official from being "hounded" by administrative cases
examination. filed by his "political enemies" during a new term, for which he has to defend himself "to the
detriment of public service." Also, the Court mentioned that the administrative liability condoned by
D. Testing the Condonation Doctrine. re-election covered the execution of the contract and the incidents related therewith.279

Pascual's ratio decidendi may be dissected into three (3) parts: (5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged
First, the penalty of removal may not be extended beyond the term in which the public officer was for his involvement in an anomalous contract for the supply of asphalt for Cebu City, executed only
elected for each term is separate and distinct: four (4) days before the upcoming elections. The Court ruled that notwithstanding the timing of the
contract's execution, the electorate is presumed to have known the petitioner's background and
character, including his past misconduct; hence, his subsequent re-election was deemed a

16
condonation of his prior transgressions. More importantly, the Court held that the determinative
time element in applying the condonation doctrine should be the time when the contract was With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
perfected; this meant that as long as the contract was entered into during a prior term, acts which significant change. The new charter introduced an entire article on accountability of public officers,
were done to implement the same, even if done during a succeeding term, do not negate the found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that
application of the condonation doctrine in favor of the elective official. "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees shall serve with the
highest degree of responsibility, integrity, loyalty and efficiency, and shall remain accountable to
(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the the people."
Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article II
condonation rule was applied even if the administrative complaint was not filed before the that "[t]he State shall maintain honesty and integrity in the public service and take positive and
reelection of the public official, and even if the alleged misconduct occurred four days before the effective measures against graft and corruption."288 Learning how unbridled power could corrupt
elections, respectively. Salalima did not distinguish as to the date of filing of the administrative public servants under the regime of a dictator, the Framers put primacy on the integrity of the
complaint, as long as the alleged misconduct was committed during the prior term, the precise public service by declaring it as a constitutional principle and a State policy. More significantly, the
timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave 1987 Constitution strengthened and solidified what has been first proclaimed in the 1973
rise to the public official's culpability was committed prior to the date of reelection.282 (Emphasis Constitution by commanding public officers to be accountable to the people at all times:
supplied)ChanRoblesVirtualawlibrary
Section 1. Public office is a public trust. Public officers and employees must at all times be
The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency
would not apply to appointive officials since, as to them, there is no sovereign will to and act with patriotism and justice, and lead modest lives.ChanRoblesVirtualawlibrary
disenfranchise.
In Belgica, it was explained that:
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary [t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
restraining order against the implementation of a preventive suspension order issued by the office is a public trust," is an overarching reminder that every instrumentality of government should
Ombudsman in view of the condonation doctrine. exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a public trust connotes accountability
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and x x x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary
Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis for The same mandate is found in the Revised Administrative Code under the section of the Civil
condonation under the prevailing constitutional and statutory framework was never accounted for. Service Commission,290 and also, in the Code of Conduct and Ethical Standards for Public
What remains apparent from the text of these cases is that the basis for condonation, as Officials and Employees.291
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which was
lifted from rulings of US courts where condonation was amply supported by their own state laws. For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective
With respect to its applicability to administrative cases, the core premise of condonation - that is, local official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise known as
an elective official's re-election cuts qff the right to remove him for an administrative offense the "Local Government Code of 1991" (LGC), which was approved on October 10 1991, and took
committed during a prior term - was adopted hook, line, and sinker in our jurisprudence largely effect on January 1, 1992:
because the legality of that doctrine was never tested against existing legal norms. As in the US,
the propriety of condonation is - as it should be -dependent on the legal foundation of the Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in order suspended, or removed from office on any of the r following grounds:
to determine if there is legal basis for the continued application of the doctrine of condonation.
(a) Disloyalty to the Republic of the Philippines;
The foundation of our entire legal system is the Constitution. It is the supreme law of the land;284 (b) Culpable violation of the Constitution;
thus, the unbending rule is that every statute should be read in light of the Constitution.285 (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
Likewise, the Constitution is a framework of a workable government; hence, its interpretation must duty;
take into account the complexities, realities, and politics attendant to the operation of the political (d) Commission of any offense involving moral turpitude or an offense punishable by at
branches of government.286 least prision mayor;
(e) Abuse of authority;
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case
the context of the 1935 Constitution which was silent with respect to public accountability, or of the of members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian
nature of public office being a public trust. The provision in the 1935 Constitution that comes bayan, and sangguniang barangay;
closest in dealing with public office is Section 2, Article II which states that "[t]he defense of the (g) Application for, or acquisition of, foreign citizenship or residence or the status of an
State is a prime duty of government, and in the fulfillment of this duty all citizens may be required immigrant of another country; and
by law to render personal military or civil service."287 Perhaps owing to the 1935 Constitution's (h) Such other grounds as may be provided in this Code and other laws.
silence on public accountability, and considering the dearth of jurisprudential rulings on the matter, An elective local official may be removed from office on the grounds enumerated above
as well as the variance in the policy considerations, there was no glaring objection confronting the by order of the proper court.
Pascual Court in adopting the condonation doctrine that originated from select US cases existing
at that time.

17
Related to this provision is Section 40 (b) of the LGC which states that those removed from office In the same vein, We do not clearly see any valid and convincing , reason why the President
as a result of an administrative case shall be disqualified from running for any elective local cannot grant executive clemency in administrative cases. It is Our considered view that if the
position: President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative cases,
Section 40. Disqualifications. - The following persons are disqualified from running for any elective which are clearly less serious than criminal offenses.
local position:
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated
xxxx therein cannot anymore be invoked against an elective local official to hold him administratively
liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation
(b) Those removed from office as a result of an administrative case; since in the first place, an elective local official who is meted with the penalty of removal could not
be re-elected to an elective local position due to a direct disqualification from running for such
x x x x (Emphasis supplied) post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of perpetual
disqualification from holding public office as an accessory to the penalty of dismissal from service.
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office: To compare, some of the cases adopted in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of administrative liability was supported by either a
Section 52. - Administrative Disabilities Inherent in Certain Penalties. - constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement misconduct committed during a previous term,294 or that the disqualification to hold the office
benefits, perpetual disqualification from holding public office, and bar from taking the civil service does not extend beyond the term in which the official's delinquency occurred.295 In one case,296
examinations. the absence of a provision against the re-election of an officer removed - unlike Section 40 (b) of
the LGC-was the justification behind condonation. In another case,297 it was deemed that
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the condonation through re-election was a policy under their constitution - which adoption in this
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he jurisdiction runs counter to our present Constitution's requirements on public accountability. There
meets the qualifications required for the office. Note, however, that the provision only pertains to was even one case where the doctrine of condonation was not adjudicated upon but only invoked
the duration of the penalty and its effect on the official's candidacy. Nothing therein states that the by a party as a ground;298 while in another case, which was not reported in full in the official
administrative liability therefor is extinguished by the fact of re-election: series, the crux of the disposition was that the evidence of a prior irregularity in no way pertained
to the charge at issue and therefore, was deemed to be incompetent.299 Hence, owing to either
Section 66. Form and Notice of Decision. - x x x. their variance or inapplicability, none of these cases can be used as basis for the continued
adoption of the condonation doctrine under our existing laws.
xxxx
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of the unexpired portion of the elective local official's prior term, and likewise allows said official to
six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of still run for re-election This treatment is similar to People ex rel Bagshaw v. Thompson300 and
the respondent so suspended as long as he meets the qualifications required for the office. Montgomery v. Novell301 both cited in Pascual, wherein it was ruled that an officer cannot be
suspended for a misconduct committed during a prior term. However, as previously stated,
Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court nothing in Section 66 (b) states that the elective local official's administrative liability is
to the conclusion that the doctrine of condonation is actually bereft of legal bases. extinguished by the fact of re-election. Thus, at all events, no legal provision actually supports the
theory that the liability is condoned.
To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would
inconsistent with the idea that an elective local official's administrative liability for a misconduct be depriving the electorate of their right to elect their officers if condonation were not to be
committed during a prior term can be wiped off by the fact that he was elected to a second term of sanctioned. In political law, election pertains to the process by which a particular constituency
office, or even another elective post. Election is not a mode of condoning an administrative chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the conclude that election automatically implies condonation. Neither is there any legal basis to say
notion that an official elected for a different term is fully absolved of any administrative liability that every democratic and republican state has an inherent regime of condonation. If condonation
arising from an offense done during a prior term. In this jurisdiction, liability arising from of an elective official's administrative liability would perhaps, be allowed in this jurisdiction, then
administrative offenses may be condoned bv the President in light of Section 19, Article VII of the the same should have been provided by law under our governing legal mechanisms. May it be at
1987 Constitution which was interpreted in Llamas v. Orbos293 to apply to administrative the time of Pascual or at present, by no means has it been shown that such a law, whether in a
offenses: constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it
cannot be said that the electorate's will has been abdicated.
The Constitution does not distinguish between which cases executive clemency may be exercised
by the President, with the sole exclusion of impeachment cases. By the same token, if executive Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for assumed to have done so with knowledge of his life and character, and that they disregarded or
the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
Constitution. Following petitioner's proposed interpretation, cases of impeachment are presumption exists in any statute or procedural rule.302 Besides, it is contrary to human
automatically excluded inasmuch as the same do not necessarily involve criminal offenses. experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded
in secrecy, and concealed from the public. Misconduct committed by an elective official is easily

18
covered up, and is almost always unknown to the electorate when they cast their votes.303 At a As for this section of the Decision, the issue to be resolved is whether or not the CA committed
conceptual level, condonation presupposes that the condoner has actual knowledge of what is to grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
be condoned. Thus, there could be no condonation of an act that is unknown. As observed in injunctive writs.
Walsh v. City Council of Trenton304 decided by the New Jersey Supreme Court:
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
Many of the cases holding that re-election of a public official prevents his removal for acts done in discretion when such act is done in a capricious or whimsical exercise of judgment as is
a preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to
that theory because condonation, implying as it does forgiveness, connotes knowledge and in the amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or
absence of knowledge there can be no condonation. One cannot forgive something of which one to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
has no knowledge. manner by reason of passion and hostility.311 It has also been held that "grave abuse of
discretion arises when a lower court or tribunal patently violates the Constitution, the law or
That being said, this Court simply finds no legal authority to sustain the condonation doctrine in existing jurisprudence."312
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the As earlier established, records disclose that the CA's resolutions directing the issuance of the
current legal regime. In consequence, it is high time for this Court to abandon the condonation assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
doctrine that originated from Pascual, and affirmed in the cases following the same, such as recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
CA. subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at that
It should, however, be clarified that this Court's abandonment of the condonation doctrine should time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave
be prospective in application for the reason that judicial decisions applying or interpreting the laws abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
or the Constitution, until reversed, shall form part of the legal system of the Philippines.305 Unto Ombudsman's preventive suspension order was correctly issued.
this Court devolves the sole authority to interpret what the Constitution means, and all persons are
bound to follow its interpretation. As explained in De Castro v. Judicial Bar Council.306 With this, the ensuing course of action should have been for the CA to resolve the main petition for
certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the Ombudsman,
Judicial decisions assume the same authority as a statute itself and, until authoritatively on October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the
abandoned, necessarily become, to the extent that they are applicable, the criteria that must penalty of dismissal, which carries the accessory penalty of perpetual disqualification from holding
control the actuations, not only of those called upon to abide by them, but also of those duty- public office, for the present administrative charges against him, the said CA petition appears to
bound to enforce obedience to them.307 have been mooted.313 As initially intimated, the preventive suspension order is only an ancillary
issuance that, at its core, serves the purpose of assisting the Office of the Ombudsman in its
Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule, investigation. It therefore has no more purpose - and perforce, dissolves - upon the termination of
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon the office's process of investigation in the instant administrative case.
should be respected. The landmark case on this matter is People v. Jabinal,308 wherein it was
ruled: F. Exceptions to the mootness principle.

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the
should be applied prospectively, and should not apply to parties who had relied on the old doctrine validity of the preventive suspension order subject of this case does not preclude any of its
and acted on the faith thereof. foregoing determinations, particularly, its abandonment of the condonation doctrine. As explained
in Belgica, '"the moot and academic principle' is not a magical formula that can automatically
Later, in Spouses Benzonan v. CA,309 it was further elaborated: dissuade the Court in resolving a case. The Court will decide cases, otherwise moot, if: first, there
is a grave violation of the Constitution; second, the exceptional character of the situation and the
[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the paramount public interest is involved; third, when the constitutional issue raised requires
Constitution shall form a part of the legal system of the Philippines." But while our decisions form formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the
part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that case is capable of repetition yet evading review."314 All of these scenarios obtain in this case:
"laws shall have no retroactive effect unless the contrary is provided." This is expressed in the
familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were
against retroactivity is easy to perceive. The retroactive application of a law usually divests rights not to abandon the condonation doctrine now that its infirmities have become apparent. As
that have already become vested or impairs the obligations of contract and hence, is extensively discussed, the continued application of the condonation doctrine is simply
unconstitutional.310ChanRoblesVirtualawlibrary impermissible under the auspices of the present Constitution which explicitly mandates that public
office is a public trust and that public officials shall be accountable to the people at all times.
Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
of legal anchorage was able to endure in our jurisprudence for a considerable length of time, this defense of elective officials to escape administrative liability. It is the first time that the legal
Court, under a new membership, takes up the cudgels and now abandons the condonation intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
doctrine. character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
E. Consequence of ruling. officials throughout the years, it is indubitable that paramount public interest is involved.

19
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of Ombudsman under the first paragraph of the said provision is DECLARED ineffective until the
controlling principles to guide the bench, the bar, and the public. The issue does not only involve Court adopts the same as part of the rules of procedure through an administrative circular duly
an in-depth exegesis of administrative law principles, but also puts to the forefront of legal issued therefor;cralawlawlibrary
discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes it
to the bench, the bar, and the public to explain how this controversial doctrine came about, and (b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in
now, its reasons for abandoning the same in view of its relevance on the parameters of public effect;cralawlawlibrary
office.
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
And fourth, the defense of condonation has been consistently invoked by elective local officials (Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
against the administrative charges filed against them. To provide a sample size, the Ombudsman Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr.
has informed the Court that "for the period of July 2013 to December 2014 alone, 85 cases from administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-0058,
the Luzon Office and 24 cases from the Central Office were dismissed on the ground of OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-
condonation. Thus, in just one and a half years, over a hundred cases of alleged misconduct - 15-0063; and
involving infractions such as dishonesty, oppression, gross neglect of duty and grave misconduct -
were placed beyond the reach of the Ombudsman's investigatory and prosecutorial powers."315 (d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is
Evidently, this fortifies the finding that the case is capable of repetition and must therefore, not DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost
evade review. dispatch.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As SO ORDERED.chanroblesvirtuallawlibrary
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render the Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Reyes, and Leonen,
subject of discussion moot.chanrobleslaw JJ., concur.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
V. Brion, J., no part/ on leave.
Mendoza, J., on leave.
With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the Bersamin, J., please see my concurring & dissenting opinion.
final issue on whether or not the CA's Resolution316 dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt317 because this action is criminal in nature and
the penalty therefor would result in her effective removal from office.318 However, a reading of the
aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive for
the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s
contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the Petition/Amended and Supplemental
Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of three (3) days
from receipt hereof. (Emphasis and underscoring supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may
properly raise her objections to the contempt proceedings by virtue of her being an impeachable
officer, the CA, in the exercise of its sound judicial discretion, may still opt not to give due course
to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put, absent any
indication that the contempt petition has been given due course by the CA, it would then be
premature for this Court to rule on the issue. The submission of the Ombudsman on this score is
perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court
resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared
UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive writs by
courts other than the Supreme Court to enjoin an investigation conducted by the Office of the

20
2. Republic of the PhilippinesSUPREME COURT their utilization of transportation services, hotels and similar lodging establishments, restaurants,
Manila drugstores, recreation centers, theaters, cinema houses, concert halls, circuses, carnivals and
other similar places of culture, leisure and amusement, which discount shall be deducted by the
EN BANC said establishments from their gross income for income tax purposes and from their gross sales
for value-added tax or other percentage tax purposes.
G.R. No. 175356 December 3, 2013 xxxx

MANILA MEMORIAL PARK, INC. AND LA FUNERARIA PAZ-SUCAT, INC., Sec. 4. RECORDING/BOOKKEEPING REQUIREMENTS FOR PRIVATE ESTABLISHMENTS. –
Petitioners, Private establishments, i.e., transport services, hotels and similar lodging establishments,
vs. restaurants, recreation centers, drugstores, theaters, cinema houses, concert halls, circuses,
carnivals and other similar places of culture[,] leisure and amusement, giving 20% discounts to
SECRETARY OF THE DEPARTMENT OF SOCIAL WELFARE AND qualified senior citizens are required to keep separate and accurate record[s] of sales made to
DEVELOPMENT and THE SECRETARY OF THE DEPARTMENT OF senior citizens, which shall include the name, identification number, gross sales/receipts,
FINANCE, Respondents. discounts, dates of transactions and invoice number for every transaction. The amount of 20%
discount shall be deducted from the gross income for income tax purposes and from gross sales
DECISION of the business enterprise concerned for purposes of the VAT and other percentage taxes.
DEL CASTILLO, J.:
In Commissioner of Internal Revenue v. Central Luzon Drug Corporation,5 the Court declared
When a party challeges the constitutionality of a law, the burden of proof rests upon him. Sections 2(i) and 4 of RR No. 02-94 as erroneous because these contravene RA 7432,6 thus:
Before us is a Petition for Prohibition2 under Rule 65 of the Rules of Court filed by petitioners
Manila Memorial Park, Inc. and La Funeraria Paz-Sucat, Inc., domestic corporations engaged in RA 7432 specifically allows private establishments to claim as tax credit the amount of discounts
the business of providing funeral and burial services, against public respondents Secretaries of they grant. In turn, the Implementing Rules and Regulations, issued pursuant thereto, provide the
the Department of Social Welfare and Development (DSWD) and the Department of Finance procedures for its availment. To deny such credit, despite the plain mandate of the law and the
(DOF). regulations carrying out that mandate, is indefensible. First, the definition given by petitioner is
Petitioners assail the constitutionality of Section 4 of Republic Act (RA) No. 7432,3 as amended by erroneous. It refers to tax credit as the amount representing the 20 percent discount that "shall be
RA 9257,4 and the implementing rules and regulations issued by the DSWD and DOF insofar as deducted by the said establishments from their gross income for income tax purposes and from
these allow business establishments to claim the 20% discount given to senior citizens as a tax their gross sales for value-added tax or other percentage tax purposes." In ordinary business
deduction. language, the tax credit represents the amount of such discount. However, the manner by which
Factual Antecedents the discount shall be credited against taxes has not been clarified by the revenue regulations. By
On April 23, 1992, RA 7432 was passed into law, granting senior citizens the following privileges: ordinary acceptation, a discount is an "abatement or reduction made from the gross amount or
SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the value of anything." To be more precise, it is in business parlance "a deduction or lowering of an
following: amount of money;" or "a reduction from the full amount or value of something, especially a price."
In business there are many kinds of discount, the most common of which is that affecting the
a) the grant of twenty percent (20%) discount from all establishments relative to income statement or financial report upon which the income tax is based.
utilization of transportation services, hotels and similar lodging establishment[s],
restaurants and recreation centers and purchase of medicine anywhere in the country: xxxx
Provided, That private establishments may claim the cost as tax credit;
b) a minimum of twenty percent (20%) discount on admission fees charged by theaters, Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94 define tax credit as the 20 percent
cinema houses and concert halls, circuses, carnivals and other similar places of culture, discount deductible from gross income for income tax purposes, or from gross sales for VAT or
leisure, and amusement; other percentage tax purposes. In effect, the tax credit benefit under RA 7432 is related to a sales
c) exemption from the payment of individual income taxes: Provided, That their annual discount. This contrived definition is improper, considering that the latter has to be deducted from
taxable income does not exceed the property level as determined by the National gross sales in order to compute the gross income in the income statement and cannot be
Economic and Development Authority (NEDA) for that year; deducted again, even for purposes of computing the income tax. When the law says that the cost
d) exemption from training fees for socioeconomic programs undertaken by the OSCA of the discount may be claimed as a tax credit, it means that the amount — when claimed — shall
as part of its work; be treated as a reduction from any tax liability, plain and simple. The option to avail of the tax
e) free medical and dental services in government establishment[s] anywhere in the credit benefit depends upon the existence of a tax liability, but to limit the benefit to a sales
country, subject to guidelines to be issued by the Department of Health, the discount — which is not even identical to the discount privilege that is granted by law — does not
Government Service Insurance System and the Social Security System; define it at all and serves no useful purpose. The definition must, therefore, be stricken down.
f) to the extent practicable and feasible, the continuance of the same benefits and Laws Not Amended by Regulations
privileges given by the Government Service Insurance System (GSIS), Social Security
System (SSS) and PAG-IBIG, as the case may be, as are enjoyed by those in actual Second, the law cannot be amended by a mere regulation. In fact, a regulation that "operates to
service. create a rule out of harmony with the statute is a mere nullity;" it cannot prevail. It is a cardinal rule
that courts "will and should respect the contemporaneous construction placed upon a statute by
On August 23, 1993, Revenue Regulations (RR) No. 02-94 was issued to implement RA 7432. the executive officers whose duty it is to enforce it x x x." In the scheme of judicial tax
Sections 2(i) and 4 of RR No. 02-94 provide: administration, the need for certainty and predictability in the implementation of tax laws is crucial.
Our tax authorities fill in the details that "Congress may not have the opportunity or competence to
Sec. 2. DEFINITIONS. – For purposes of these regulations: i. Tax Credit – refers to the amount provide." The regulations these authorities issue are relied upon by taxpayers, who are certain that
representing the 20% discount granted to a qualified senior citizen by all establishments relative to these will be followed by the courts. Courts, however, will not uphold these authorities’

21
interpretations when clearly absurd, erroneous or improper. In the present case, the tax authorities (i) Funeral parlors and similar establishments – The beneficiary or any person who shall shoulder
have given the term tax credit in Sections 2.i and 4 of RR 2-94 a meaning utterly in contrast to the funeral and burial expenses of the deceased senior citizen shall claim the discount, such as
what RA 7432 provides. Their interpretation has muddled x x x the intent of Congress in granting a casket, embalmment, cremation cost and other related services for the senior citizen upon
mere discount privilege, not a sales discount. The administrative agency issuing these regulations payment and presentation of [his] death certificate.
may not enlarge, alter or restrict the provisions of the law it administers; it cannot engraft
additional requirements not contemplated by the legislature. The DSWD likewise issued its own Rules and Regulations Implementing RA 9257, to wit:
RULE VI DISCOUNTS AS TAX DEDUCTION OF ESTABLISHMENTS
In case of conflict, the law must prevail. A "regulation adopted pursuant to law is law." Conversely,
a regulation or any portion thereof not adopted pursuant to law is no law and has neither the force Article 8. Tax Deduction of Establishments. – The establishment may claim the discounts granted
nor the effect of law.7 under Rule V, Section 4 – Discounts for Establishments, Section 9, Medical and Dental Services
in Private Facilities and Sections 10 and 11 – Air, Sea and Land Transportation as tax deduction
On February 26, 2004, RA 92578 amended certain provisions of RA 7432, to wit: based on the net cost of the goods sold or services rendered.

SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the Provided, That the cost of the discount shall be allowed as deduction from gross income for the
following: same taxable year that the discount is granted; Provided, further, That the total amount of the
(a) the grant of twenty percent (20%) discount from all establishments relative to the utilization of claimed tax deduction net of value added tax if applicable, shall be included in their gross sales
services in hotels and similar lodging establishments, restaurants and recreation centers, and receipts for tax purposes and shall be subject to proper documentation and to the provisions of the
purchase of medicines in all establishments for the exclusive use or enjoyment of senior citizens, National Internal Revenue Code, as amended; Provided, finally, that the implementation of the tax
including funeral and burial services for the death of senior citizens; deduction shall be subject to the Revenue Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of Finance (DOF).
xxxx
Feeling aggrieved by the tax deduction scheme, petitioners filed the present recourse, praying that
The establishment may claim the discounts granted under (a), (f), (g) and (h) as tax deduction Section 4 of RA 7432, as amended by RA 9257, and the implementing rules and regulations
based on the net cost of the goods sold or services rendered: Provided, That the cost of the issued by the DSWD and the DOF be declared unconstitutional insofar as these allow business
discount shall be allowed as deduction from gross income for the same taxable year that the establishments to claim the 20% discount given to senior citizens as a tax deduction; that the
discount is granted. Provided, further, That the total amount of the claimed tax deduction net of DSWD and the DOF be prohibited from enforcing the same; and that the tax credit treatment of
value added tax if applicable, shall be included in their gross sales receipts for tax purposes and the 20% discount under the former Section 4 (a) of RA 7432 be reinstated.
shall be subject to proper documentation and to the provisions of the National Internal Revenue
Code, as amended. Issues

To implement the tax provisions of RA 9257, the Secretary of Finance issued RR No. 4-2006, the Petitioners raise the following issues:
pertinent provision of which provides: A. WHETHER THE PETITION PRESENTS AN ACTUAL CASE OR CONTROVERSY.
B. WHETHER SECTION 4 OF REPUBLIC ACT NO. 9257 AND X X X ITS IMPLEMENTING
SEC. 8. AVAILMENT BY ESTABLISHMENTS OF SALES DISCOUNTS AS DEDUCTION FROM RULES AND REGULATIONS, INSOFAR AS THEY PROVIDE THAT THE TWENTY PERCENT
GROSS INCOME. – Establishments enumerated in subparagraph (6) hereunder granting sales (20%) DISCOUNT TO SENIOR CITIZENS MAY BE CLAIMED AS A TAX DEDUCTION BY THE
discounts to senior citizens on the sale of goods and/or services specified thereunder are entitled PRIVATE ESTABLISHMENTS, ARE INVALID AND UNCONSTITUTIONAL.9
to deduct the said discount from gross income subject to the following conditions:
Petitioners’ Arguments
(1) Only that portion of the gross sales EXCLUSIVELY USED, CONSUMED OR
ENJOYED BY THE SENIOR CITIZEN shall be eligible for the deductible sales discount. Petitioners emphasize that they are not questioning the 20% discount granted to senior citizens
(2) The gross selling price and the sales discount MUST BE SEPARATELY INDICATED but are only assailing the constitutionality of the tax deduction scheme prescribed under RA 9257
IN THE OFFICIAL RECEIPT OR SALES INVOICE issued by the establishment for the and the implementing rules and regulations issued by the DSWD and the DOF.10
sale of goods or services to the senior citizen. Petitioners posit that the tax deduction scheme contravenes Article III, Section 9 of the
(3) Only the actual amount of the discount granted or a sales discount not exceeding Constitution, which provides that: "[p]rivate property shall not be taken for public use without just
20% of the gross selling price can be deducted from the gross income, net of value compensation."11
added tax, if applicable, for income tax purposes, and from gross sales or gross receipts In support of their position, petitioners cite Central Luzon Drug Corporation,12 where it was ruled
of the business enterprise concerned, for VAT or other percentage tax purposes. that the 20% discount privilege constitutes taking of private property for public use which requires
(4) The discount can only be allowed as deduction from gross income for the same the payment of just compensation,13 and Carlos Superdrug Corporation v. Department of Social
taxable year that the discount is granted. Welfare and Development,14 where it was acknowledged that the tax deduction scheme does not
(5) The business establishment giving sales discounts to qualified senior citizens is meet the definition of just compensation.15
required to keep separate and accurate record[s] of sales, which shall include the name
of the senior citizen, TIN, OSCA ID, gross sales/receipts, sales discount granted, [date] Petitioners likewise seek a reversal of the ruling in Carlos Superdrug Corporation16 that the tax
of [transaction] and invoice number for every sale transaction to senior citizen. deduction scheme adopted by the government is justified by police power.17
(6) Only the following business establishments which granted sales discount to senior They assert that "[a]lthough both police power and the power of eminent domain have the general
citizens on their sale of goods and/or services may claim the said discount granted as welfare for their object, there are still traditional distinctions between the two"18 and that "eminent
deduction from gross income, namely: domain cannot be made less supreme than police power."19
xxxx

22
Petitioners further claim that the legislature, in amending RA 7432, relied on an erroneous Petitioners posit that the resolution of this case lies in the determination of whether the legally
contemporaneous construction that prior payment of taxes is required for tax credit.20 mandated 20% senior citizen discount is an exercise of police power or eminent domain. If it is
police power, no just compensation is warranted. But if it is eminent domain, the tax deduction
Petitioners also contend that the tax deduction scheme violates Article XV, Section 421 and Article scheme is unconstitutional because it is not a peso for peso reimbursement of the 20% discount
XIII, Section 1122 of the Constitution because it shifts the State’s constitutional mandate or duty of given to senior citizens. Thus, it constitutes taking of private property without payment of just
improving the welfare of the elderly to the private sector.23 compensation. At the outset, we note that this question has been settled in Carlos Superdrug
Corporation.35
Under the tax deduction scheme, the private sector shoulders 65% of the discount because only
35%24 of it is actually returned by the government.25 In that case, we ruled:

Consequently, the implementation of the tax deduction scheme prescribed under Section 4 of RA Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes deprivation
9257 affects the businesses of petitioners.26 of private property. Compelling drugstore owners and establishments to grant the discount will
result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5% to 10% on
Thus, there exists an actual case or controversy of transcendental importance which deserves branded medicines; and 2) the law failed to provide a scheme whereby drugstores will be justly
judicious disposition on the merits by the highest court of the land.27 compensated for the discount. Examining petitioners’ arguments, it is apparent that what
petitioners are ultimately questioning is the validity of the tax deduction scheme as a
Respondents’ Arguments reimbursement mechanism for the twenty percent (20%) discount that they extend to senior
citizens. Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully
Respondents, on the other hand, question the filing of the instant Petition directly with the reimburse petitioners for the discount privilege accorded to senior citizens. This is because the
Supreme Court as this disregards the hierarchy of courts.28 discount is treated as a deduction, a tax-deductible expense that is subtracted from the gross
income and results in a lower taxable income. Stated otherwise, it is an amount that is allowed by
They likewise assert that there is no justiciable controversy as petitioners failed to prove that the law to reduce the income prior to the application of the tax rate to compute the amount of tax
tax deduction treatment is not a "fair and full equivalent of the loss sustained" by them.29 which is due. Being a tax deduction, the discount does not reduce taxes owed on a peso for peso
basis but merely offers a fractional reduction in taxes owed. Theoretically, the treatment of the
As to the constitutionality of RA 9257 and its implementing rules and regulations, respondents discount as a deduction reduces the net income of the private establishments concerned. The
contend that petitioners failed to overturn its presumption of constitutionality.30 discounts given would have entered the coffers and formed part of the gross sales of the private
establishments, were it not for R.A. No. 9257. The permanent reduction in their total revenues is a
More important, respondents maintain that the tax deduction scheme is a legitimate exercise of forced subsidy corresponding to the taking of private property for public use or benefit. This
the State’s police power.31 constitutes compensable taking for which petitioners would ordinarily become entitled to a just
compensation. Just compensation is defined as the full and fair equivalent of the property taken
Our Ruling from its owner by the expropriator. The measure is not the taker’s gain but the owner’s loss. The
word just is used to intensify the meaning of the word compensation, and to convey the idea that
The Petition lacks merit. the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample.
A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would
There exists an actual case or controversy. not meet the definition of just compensation. Having said that, this raises the question of whether
the State, in promoting the health and welfare of a special group of citizens, can impose upon
We shall first resolve the procedural issue. When the constitutionality of a law is put in issue, private establishments the burden of partly subsidizing a government program. The Court believes
judicial review may be availed of only if the following requisites concur: "(1) the existence of an so. The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens
actual and appropriate case; (2) the existence of personal and substantial interest on the part of to nation-building, and to grant benefits and privileges to them for their improvement and well-
the party raising the [question of constitutionality]; (3) recourse to judicial review is made at the being as the State considers them an integral part of our society. The priority given to senior
earliest opportunity; and (4) the [question of constitutionality] is the lis mota of the case."32 citizens finds its basis in the Constitution as set forth in the law itself.1âwphi1

In this case, petitioners are challenging the constitutionality of the tax deduction scheme provided Thus, the Act provides: SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:
in RA 9257 and the implementing rules and regulations issued by the DSWD and the DOF.
Respondents, however, oppose the Petition on the ground that there is no actual case or SECTION 1. Declaration of Policies and Objectives. — Pursuant to Article XV, Section 4 of the
controversy. We do not agree with respondents. An actual case or controversy exists when there Constitution, it is the duty of the family to take care of its elderly members while the State may
is "a conflict of legal rights" or "an assertion of opposite legal claims susceptible of judicial design programs of social security for them. In addition to this, Section 10 in the Declaration of
resolution."33 Principles and State Policies provides: "The State shall provide social justice in all phases of
national development." Further, Article XIII, Section 11, provides: "The State shall adopt an
The Petition must therefore show that "the governmental act being challenged has a direct integrated and comprehensive approach to health development which shall endeavor to make
adverse effect on the individual challenging it."34 essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged sick, elderly, disabled, women and
In this case, the tax deduction scheme challenged by petitioners has a direct adverse effect on children." Consonant with these constitutional principles the following are the declared policies of
them. Thus, it cannot be denied that there exists an actual case or controversy. this Act:
xxx xxx xxx
The validity of the 20% senior citizen discount and tax deduction scheme under RA 9257, as an (f) To recognize the important role of the private sector in the improvement of the welfare of senior
exercise of police power of the State, has already been settled in Carlos Superdrug Corporation. citizens and to actively seek their partnership.

23
To implement the above policy, the law grants a twenty percent discount to senior citizens for and the State, in the exercise of police power, can intervene in the operations of a business which
medical and dental services, and diagnostic and laboratory fees; admission fees charged by may result in an impairment of property rights in the process.
theaters, concert halls, circuses, carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel; utilization of services in hotels and similar Moreover, the right to property has a social dimension. While Article XIII of the Constitution
lodging establishments, restaurants and recreation centers; and purchases of medicines for the provides the precept for the protection of property, various laws and jurisprudence, particularly on
exclusive use or enjoyment of senior citizens. As a form of reimbursement, the law provides that agrarian reform and the regulation of contracts and public utilities, continuously serve as x x x
business establishments extending the twenty percent discount to senior citizens may claim the reminder[s] that the right to property can be relinquished upon the command of the State for the
discount as a tax deduction. The law is a legitimate exercise of police power which, similar to the promotion of public good. Undeniably, the success of the senior citizens program rests largely on
power of eminent domain, has general welfare for its object. Police power is not capable of an the support imparted by petitioners and the other private establishments concerned. This being
exact definition, but has been purposely veiled in general terms to underscore its the case, the means employed in invoking the active participation of the private sector, in order to
comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible achieve the purpose or objective of the law, is reasonably and directly related. Without sufficient
response to conditions and circumstances, thus assuring the greatest benefits. Accordingly, it has proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the continued implementation of the
been described as "the most essential, insistent and the least limitable of powers, extending as it same would be unconscionably detrimental to petitioners, the Court will refrain from quashing a
does to all the great public needs." It is "[t]he power vested in the legislature by the constitution to legislative act.36 (Bold in the original; underline supplied)
make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and We, thus, found that the 20% discount as well as the tax deduction scheme is a valid exercise of
ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge the police power of the State.
to be for the good and welfare of the commonwealth, and of the subjects of the same." For this
reason, when the conditions so demand as determined by the legislature, property rights must No compelling reason has been proffered to overturn, modify or abandon the ruling in Carlos
bow to the primacy of police power because property rights, though sheltered by due process, Superdrug Corporation.
must yield to general welfare. Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and Petitioners argue that we have previously ruled in Central Luzon Drug Corporation37 that the 20%
capital, the questioned provision is invalidated. Moreover, in the absence of evidence discount is an exercise of the power of eminent domain, thus, requiring the payment of just
demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its compensation. They urge us to re-examine our ruling in Carlos Superdrug Corporation38 which
nullification in view of the presumption of validity which every law has in its favor. Given these, it is allegedly reversed the ruling in Central Luzon Drug Corporation.39
incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to
their business, because petitioners have not taken time to calculate correctly and come up with a They also point out that Carlos Superdrug Corporation40 recognized that the tax deduction
financial report, so that they have not been able to show properly whether or not the tax deduction scheme under the assailed law does not provide for sufficient just compensation. We agree with
scheme really works greatly to their disadvantage. In treating the discount as a tax deduction, petitioners’ observation that there are statements in Central Luzon Drug Corporation41 describing
petitioners insist that they will incur losses because, referring to the DOF Opinion, for every ₱1.00 the 20% discount as an exercise of the power of eminent domain, viz.:
senior citizen discount that petitioners would give, P0.68 will be shouldered by them as only P0.32
will be refunded by the government by way of a tax deduction. To illustrate this point, petitioner [T]he privilege enjoyed by senior citizens does not come directly from the State, but
Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an example. rather from the private establishments concerned. Accordingly, the tax credit benefit
According to the latter, it acquires Norvasc from the distributors at ₱37.57 per tablet, and retails it granted to these establishments can be deemed as their just compensation for private
at ₱39.60 (or at a margin of 5%). If it grants a 20% discount to senior citizens or an amount property taken by the State for public use. The concept of public use is no longer
equivalent to ₱7.92, then it would have to sell Norvasc at ₱31.68 which translates to a loss from confined to the traditional notion of use by the public, but held synonymous with public
capital of ₱5.89 per tablet. Even if the government will allow a tax deduction, only ₱2.53 per tablet interest, public benefit, public welfare, and public convenience. The discount privilege to
will be refunded and not the full amount of the discount which is ₱7.92. In short, only 32% of the which our senior citizens are entitled is actually a benefit enjoyed by the general public
20% discount will be reimbursed to the drugstores. Petitioners’ computation is flawed. For to which these citizens belong. The discounts given would have entered the coffers and
purposes of reimbursement, the law states that the cost of the discount shall be deducted from formed part of the gross sales of the private establishments concerned, were it not for
gross income, the amount of income derived from all sources before deducting allowable RA 7432. The permanent reduction in their total revenues is a forced subsidy
expenses, which will result in net income. Here, petitioners tried to show a loss on a per corresponding to the taking of private property for public use or benefit. As a result of
transaction basis, which should not be the case. An income statement, showing an accounting of the 20 percent discount imposed by RA 7432, respondent becomes entitled to a just
petitioners' sales, expenses, and net profit (or loss) for a given period could have accurately compensation. This term refers not only to the issuance of a tax credit certificate
reflected the effect of the discount on their income. Absent any financial statement, petitioners indicating the correct amount of the discounts given, but also to the promptness in its
cannot substantiate their claim that they will be operating at a loss should they give the discount. release. Equivalent to the payment of property taken by the State, such issuance —
In addition, the computation was erroneously based on the assumption that their customers when not done within a reasonable time from the grant of the discounts — cannot be
consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed on income, not on the considered as just compensation. In effect, respondent is made to suffer the
amount of the discount. consequences of being immediately deprived of its revenues while awaiting actual
receipt, through the certificate, of the equivalent amount it needs to cope with the
Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the prices of reduction in its revenues. Besides, the taxation power can also be used as an
their medicines given the cutthroat nature of the players in the industry. It is a business decision implement for the exercise of the power of eminent domain. Tax measures are but
on the part of petitioners to peg the mark-up at 5%. Selling the medicines below acquisition cost, "enforced contributions exacted on pain of penal sanctions" and "clearly imposed for a
as alleged by petitioners, is merely a result of this decision. Inasmuch as pricing is a property right, public purpose." In recent years, the power to tax has indeed become a most effective
petitioners cannot reproach the law for being oppressive, simply because they cannot afford to tool to realize social justice, public welfare, and the equitable distribution of wealth.
raise their prices for fear of losing their customers to competition. The Court is not oblivious of the While it is a declared commitment under Section 1 of RA 7432, social justice "cannot be
retail side of the pharmaceutical industry and the competitive pricing component of the business. invoked to trample on the rights of property owners who under our Constitution and laws
While the Constitution protects property rights, petitioners must accept the realities of business are also entitled to protection. The social justice consecrated in our [C]onstitution [is] not
intended to take away rights from a person and give them to another who is not entitled

24
thereto." For this reason, a just compensation for income that is taken away from our ruling in Carlos Superdrug Corporation,51 this referred only to preliminary matters. A fair
respondent becomes necessary. It is in the tax credit that our legislators find support to reading of Carlos Superdrug Corporation52 would show that we categorically ruled therein that the
realize social justice, and no administrative body can alter that fact. To put it differently, 20% discount is a valid exercise of police power. Thus, even if the current law, through its tax
a private establishment that merely breaks even — without the discounts yet — will deduction scheme (which abandoned the tax credit scheme under the previous law), does not
surely start to incur losses because of such discounts. The same effect is expected if its provide for a peso for peso reimbursement of the 20% discount given by private establishments,
mark-up is less than 20 percent, and if all its sales come from retail purchases by senior no constitutional infirmity obtains because, being a valid exercise of police power, payment of just
citizens. Aside from the observation we have already raised earlier, it will also be compensation is not warranted. We have carefully reviewed the basis of our ruling in Carlos
grossly unfair to an establishment if the discounts will be treated merely as deductions Superdrug Corporation53 and we find no cogent reason to overturn, modify or abandon it. We also
from either its gross income or its gross sales.1âwphi1 Operating at a loss through no note that petitioners’ arguments are a mere reiteration of those raised and resolved in Carlos
fault of its own, it will realize that the tax credit limitation under RR 2-94 is inutile, if not Superdrug Corporation.54 Thus, we sustain Carlos Superdrug Corporation.55
improper. Worse, profit-generating businesses will be put in a better position if they avail
themselves of tax credits denied those that are losing, because no taxes are due from Nonetheless, we deem it proper, in what follows, to amplify our explanation in Carlos Superdrug
the latter.42 (Italics in the original; emphasis supplied) Corporation56 as to why the 20% discount is a valid exercise of police power and why it may not,
under the specific circumstances of this case, be considered as an exercise of the power of
The above was partly incorporated in our ruling in Carlos Superdrug Corporation43 when we eminent domain contrary to the obiter in Central Luzon Drug Corporation.57
stated preliminarily that—
Police power versus eminent domain.
Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes deprivation
of private property. Compelling drugstore owners and establishments to grant the discount will Police power is the inherent power of the State to regulate or to restrain the use of liberty and
result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5% to 10% on property for public welfare.58
branded medicines; and 2) the law failed to provide a scheme whereby drugstores will be justly
compensated for the discount. Examining petitioners’ arguments, it is apparent that what The only limitation is that the restriction imposed should be reasonable, not oppressive.59
petitioners are ultimately questioning is the validity of the tax deduction scheme as a
reimbursement mechanism for the twenty percent (20%) discount that they extend to senior In other words, to be a valid exercise of police power, it must have a lawful subject or objective
citizens. Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully and a lawful method of accomplishing the goal.60
reimburse petitioners for the discount privilege accorded to senior citizens. This is because the
discount is treated as a deduction, a tax-deductible expense that is subtracted from the gross Under the police power of the State, "property rights of individuals may be subjected to restraints
income and results in a lower taxable income. Stated otherwise, it is an amount that is allowed by and burdens in order to fulfill the objectives of the government."61
law to reduce the income prior to the application of the tax rate to compute the amount of tax
which is due. Being a tax deduction, the discount does not reduce taxes owed on a peso for peso The State "may interfere with personal liberty, property, lawful businesses and occupations to
basis but merely offers a fractional reduction in taxes owed. Theoretically, the treatment of the promote the general welfare [as long as] the interference [is] reasonable and not arbitrary."62
discount as a deduction reduces the net income of the private establishments concerned. The Eminent domain, on the other hand, is the inherent power of the State to take or appropriate
discounts given would have entered the coffers and formed part of the gross sales of the private private property for public use.63
establishments, were it not for R.A. No. 9257. The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private property for public use or benefit. This The Constitution, however, requires that private property shall not be taken without due process of
constitutes compensable taking for which petitioners would ordinarily become entitled to a just law and the payment of just compensation.64
compensation. Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator. The measure is not the taker’s gain but the owner’s loss. The Traditional distinctions exist between police power and eminent domain. In the exercise of police
word just is used to intensify the meaning of the word compensation, and to convey the idea that power, a property right is impaired by regulation,65 or the use of property is merely prohibited,
the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. regulated or restricted66 to promote public welfare. In such cases, there is no compensable
A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would taking, hence, payment of just compensation is not required. Examples of these regulations are
not meet the definition of just compensation. Having said that, this raises the question of whether property condemned for being noxious or intended for noxious purposes (e.g., a building on the
the State, in promoting the health and welfare of a special group of citizens, can impose upon verge of collapse to be demolished for public safety, or obscene materials to be destroyed in the
private establishments the burden of partly subsidizing a government program. The Court believes interest of public morals)67 as well as zoning ordinances prohibiting the use of property for
so.44 purposes injurious to the health, morals or safety of the community (e.g., dividing a city’s territory
into residential and industrial areas).68
This, notwithstanding, we went on to rule in Carlos Superdrug Corporation45 that the 20%
discount and tax deduction scheme is a valid exercise of the police power of the State. The It has, thus, been observed that, in the exercise of police power (as distinguished from eminent
present case, thus, affords an opportunity for us to clarify the above-quoted statements in Central domain), although the regulation affects the right of ownership, none of the bundle of rights which
Luzon Drug Corporation46 and Carlos Superdrug Corporation.47 constitute ownership is appropriated for use by or for the benefit of the public.69

First, we note that the above-quoted disquisition on eminent domain in Central Luzon Drug On the other hand, in the exercise of the power of eminent domain, property interests are
Corporation48 is obiter dicta and, thus, not binding precedent. As stated earlier, in Central Luzon appropriated and applied to some public purpose which necessitates the payment of just
Drug Corporation,49 we ruled that the BIR acted ultra vires when it effectively treated the 20% compensation therefor. Normally, the title to and possession of the property are transferred to the
discount as a tax deduction, under Sections 2.i and 4 of RR No. 2-94, despite the clear wording of expropriating authority. Examples include the acquisition of lands for the construction of public
the previous law that the same should be treated as a tax credit. We were, therefore, not highways as well as agricultural lands acquired by the government under the agrarian reform law
confronted in that case with the issue as to whether the 20% discount is an exercise of police for redistribution to qualified farmer beneficiaries. However, it is a settled rule that the acquisition
power or eminent domain. Second, although we adverted to Central Luzon Drug Corporation50 in

25
of title or total destruction of the property is not essential for "taking" under the power of eminent law prescribing the 20% discount, and (2) the permanent reduction in total revenues is a forced
domain to be present.70 subsidy corresponding to the taking of private property for public use or benefit. The flaw in this
reasoning is in its premise. It presupposes that the subject regulation, which impacts the pricing
Examples of these include establishment of easements such as where the land owner is and, hence, the profitability of a private establishment, automatically amounts to a deprivation of
perpetually deprived of his proprietary rights because of the hazards posed by electric property without due process of law. If this were so, then all price and rate of return on investment
transmission lines constructed above his property71 or the compelled interconnection of the control laws would have to be invalidated because they impact, at some level, the regulated
telephone system between the government and a private company.72 establishment’s profits or income/gross sales, yet there is no provision for payment of just
compensation. It would also mean that overnment cannot set price or rate of return on investment
In these cases, although the private property owner is not divested of ownership or possession, limits, which reduce the profits or income/gross sales of private establishments, if no just
payment of just compensation is warranted because of the burden placed on the property for the compensation is paid even if the measure is not confiscatory. The obiter is, thus, at odds with the
use or benefit of the public. settled octrine that the State can employ police power measures to regulate the pricing of goods
and services, and, hence, the profitability of business establishments in order to pursue legitimate
The 20% senior citizen discount is an exercise of police power. State objectives for the common good, provided that the regulation does not go too far as to
amount to "taking."79
It may not always be easy to determine whether a challenged governmental act is an exercise of
police power or eminent domain. The very nature of police power as elastic and responsive to In City of Manila v. Laguio, Jr.,80 we recognized that— x x x a taking also could be found if
various social conditions73 as well as the evolving meaning and scope of public use74 and just government regulation of the use of property went "too far." When regulation reaches a certain
compensation75 in eminent domain evinces that these are not static concepts. Because of the magnitude, in most if not in all cases there must be an exercise of eminent domain and
exigencies of rapidly changing times, Congress may be compelled to adopt or experiment with compensation to support the act. While property may be regulated to a certain extent, if regulation
different measures to promote the general welfare which may not fall squarely within the goes too far it will be recognized as a taking. No formula or rule can be devised to answer the
traditionally recognized categories of police power and eminent domain. The judicious approach, questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes
therefore, is to look at the nature and effects of the challenged governmental act and decide, on recognized that it was "a question of degree and therefore cannot be disposed of by general
the basis thereof, whether the act is the exercise of police power or eminent domain. Thus, we propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of
now look at the nature and effects of the 20% discount to determine if it constitutes an exercise of when regulation constitutes a taking is a matter of considering the facts in each case. The Court
police power or eminent domain. The 20% discount is intended to improve the welfare of senior asks whether justice and fairness require that the economic loss caused by public action must be
citizens who, at their age, are less likely to be gainfully employed, more prone to illnesses and compensated by the government and thus borne by the public as a whole, or whether the loss
other disabilities, and, thus, in need of subsidy in purchasing basic commodities. It may not be should remain concentrated on those few persons subject to the public action.81
amiss to mention also that the discount serves to honor senior citizens who presumably spent the
productive years of their lives on contributing to the development and progress of the nation. This The impact or effect of a regulation, such as the one under consideration, must, thus, be
distinct cultural Filipino practice of honoring the elderly is an integral part of this law. As to its determined on a case-to-case basis. Whether that line between permissible regulation under
nature and effects, the 20% discount is a regulation affecting the ability of private establishments police power and "taking" under eminent domain has been crossed must, under the specific
to price their products and services relative to a special class of individuals, senior citizens, for circumstances of this case, be subject to proof and the one assailing the constitutionality of the
which the Constitution affords preferential concern.76 regulation carries the heavy burden of proving that the measure is unreasonable, oppressive or
confiscatory. The time-honored rule is that the burden of proving the unconstitutionality of a law
In turn, this affects the amount of profits or income/gross sales that a private establishment can rests upon the one assailing it and "the burden becomes heavier when police power is at issue."82
derive from senior citizens. In other words, the subject regulation affects the pricing, and, hence,
the profitability of a private establishment. However, it does not purport to appropriate or burden The 20% senior citizen discount has not been shown to be unreasonable, oppressive or
specific properties, used in the operation or conduct of the business of private establishments, for confiscatory.
the use or benefit of the public, or senior citizens for that matter, but merely regulates the pricing In Alalayan v. National Power Corporation,83 petitioners, who were franchise holders of electric
of goods and services relative to, and the amount of profits or income/gross sales that such plants, challenged the validity of a law limiting their allowable net profits to no more than 12% per
private establishments may derive from, senior citizens. The subject regulation may be said to be annum of their investments plus two-month operating expenses. In rejecting their plea, we ruled
similar to, but with substantial distinctions from, price control or rate of return on investment control that, in an earlier case, it was found that 12% is a reasonable rate of return and that petitioners
laws which are traditionally regarded as police power measures.77 failed to prove that the aforesaid rate is confiscatory in view of the presumption of
constitutionality.84
These laws generally regulate public utilities or industries/enterprises imbued with public interest
in order to protect consumers from exorbitant or unreasonable pricing as well as temper corporate We adopted a similar line of reasoning in Carlos Superdrug Corporation85 when we ruled that
greed by controlling the rate of return on investment of these corporations considering that they petitioners therein failed to prove that the 20% discount is arbitrary, oppressive or confiscatory.
have a monopoly over the goods or services that they provide to the general public. The subject We noted that no evidence, such as a financial report, to establish the impact of the 20% discount
regulation differs therefrom in that (1) the discount does not prevent the establishments from on the overall profitability of petitioners was presented in order to show that they would be
adjusting the level of prices of their goods and services, and (2) the discount does not apply to all operating at a loss due to the subject regulation or that the continued implementation of the law
customers of a given establishment but only to the class of senior citizens. Nonetheless, to the would be unconscionably detrimental to the business operations of petitioners. In the case at bar,
degree material to the resolution of this case, the 20% discount may be properly viewed as petitioners proceeded with a hypothetical computation of the alleged loss that they will suffer
belonging to the category of price regulatory measures which affect the profitability of similar to what the petitioners in Carlos Superdrug Corporation86 did. Petitioners went directly to
establishments subjected thereto. On its face, therefore, the subject regulation is a police power this Court without first establishing the factual bases of their claims. Hence, the present recourse
measure. The obiter in Central Luzon Drug Corporation,78 however, describes the 20% discount must, likewise, fail. Because all laws enjoy the presumption of constitutionality, courts will uphold a
as an exercise of the power of eminent domain and the tax credit, under the previous law, law’s validity if any set of facts may be conceived to sustain it.87
equivalent to the amount of discount given as the just compensation therefor. The reason is that On its face, we find that there are at least two conceivable bases to sustain the subject
(1) the discount would have formed part of the gross sales of the establishment were it not for the regulation’s validity absent clear and convincing proof that it is unreasonable, oppressive or

26
confiscatory. Congress may have legitimately concluded that business establishments have the The 20 percent discount required by the law to be given to senior citizens is a tax credit,
capacity to absorb a decrease in profits or income/gross sales due to the 20% discount without not merely a tax deduction from the gross income or gross sale of the establishment
substantially affecting the reasonable rate of return on their investments considering (1) not all concerned. A tax credit is used by a private establishment only after the tax has been
customers of a business establishment are senior citizens and (2) the level of its profit margins on computed; a tax deduction, before the tax is computed. RA 7432 unconditionally grants
goods and services offered to the general public. Concurrently, Congress may have, likewise, a tax credit to all covered entities. Thus, the provisions of the revenue regulation that
legitimately concluded that the establishments, which will be required to extend the 20% discount, withdraw or modify such grant are void. Basic is the rule that administrative regulations
have the capacity to revise their pricing strategy so that whatever reduction in profits or cannot amend or revoke the law.93
income/gross sales that they may sustain because of sales to senior citizens, can be recouped
through higher mark-ups or from other products not subject of discounts. As a result, the discounts As can be readily seen, the discussion on eminent domain was not necessary in order to arrive at
resulting from sales to senior citizens will not be confiscatory or unduly oppressive. In sum, we this conclusion. All that was needed was to point out that the revenue regulation contravened the
sustain our ruling in Carlos Superdrug Corporation88 that the 20% senior citizen discount and tax law which it sought to implement. And, precisely, this was done in Central Luzon Drug
deduction scheme are valid exercises of police power of the State absent a clear showing that it is Corporation94 by comparing the wording of the previous law vis-à-vis the revenue regulation;
arbitrary, oppressive or confiscatory. employing the rules of statutory construction; and applying the settled principle that a regulation
cannot amend the law it seeks to implement. A close reading of Central Luzon Drug
Conclusion Corporation95 would show that the Court went on to state that the tax credit "can be deemed" as
just compensation only to explain why the previous law provides for a tax credit instead of a tax
In closing, we note that petitioners hypothesize, consistent with our previous ratiocinations, that deduction. The Court surmised that the tax credit was a form of just compensation given to the
the discount will force establishments to raise their prices in order to compensate for its impact on establishments covered by the 20% discount. However, the reason why the previous law provided
overall profits or income/gross sales. The general public, or those not belonging to the senior for a tax credit and not a tax deduction was not necessary to resolve the issue as to whether the
citizen class, are, thus, made to effectively shoulder the subsidy for senior citizens. This, in revenue regulation contravenes the law. Hence, the discussion on eminent domain is obiter dicta.
petitioners’ view, is unfair.
As already mentioned, Congress may be reasonably assumed to have foreseen this eventuality. A court, in resolving cases before it, may look into the possible purposes or reasons that impelled
But, more importantly, this goes into the wisdom, efficacy and expediency of the subject law which the enactment of a particular statute or legal provision. However, statements made relative thereto
is not proper for judicial review. In a way, this law pursues its social equity objective in a non- are not always necessary in resolving the actual controversies presented before it. This was the
traditional manner unlike past and existing direct subsidy programs of the government for the poor case in Central Luzon Drug Corporation96 resulting in that unfortunate statement that the tax
and marginalized sectors of our society. Verily, Congress must be given sufficient leeway in credit "can be deemed" as just compensation. This, in turn, led to the erroneous conclusion, by
formulating welfare legislations given the enormous challenges that the government faces relative deductive reasoning, that the 20% discount is an exercise of the power of eminent domain. The
to, among others, resource adequacy and administrative capability in implementing social reform Dissent essentially adopts this theory and reasoning which, as will be shown below, is contrary to
measures which aim to protect and uphold the interests of those most vulnerable in our society. In settled principles in police power and eminent domain analysis. II The Dissent discusses at length
the process, the individual, who enjoys the rights, benefits and privileges of living in a democratic the doctrine on "taking" in police power which occurs when private property is destroyed or placed
polity, must bear his share in supporting measures intended for the common good. This is only outside the commerce of man. Indeed, there is a whole class of police power measures which
fair. In fine, without the requisite showing of a clear and unequivocal breach of the Constitution, justify the destruction of private property in order to preserve public health, morals, safety or
the validity of the assailed law must be sustained. welfare. As earlier mentioned, these would include a building on the verge of collapse or
confiscated obscene materials as well as those mentioned by the Dissent with regard to property
Refutation of the Dissent used in violating a criminal statute or one which constitutes a nuisance. In such cases, no
compensation is required. However, it is equally true that there is another class of police power
The main points of Justice Carpio’s Dissent may be summarized as follows: (1) the discussion on measures which do not involve the destruction of private property but merely regulate its use. The
eminent domain in Central Luzon Drug Corporation89 is not obiter dicta ; (2) allowable taking, in minimum wage law, zoning ordinances, price control laws, laws regulating the operation of motels
police power, is limited to property that is destroyed or placed outside the commerce of man for and hotels, laws limiting the working hours to eight, and the like would fall under this category. The
public welfare; (3) the amount of mandatory discount is private property within the ambit of Article examples cited by the Dissent, likewise, fall under this category: Article 157 of the Labor Code,
III, Section 990 of the Constitution; and (4) the permanent reduction in a private establishment’s Sections 19 and 18 of the Social Security Law, and Section 7 of the Pag-IBIG Fund Law. These
total revenue, arising from the mandatory discount, is a taking of private property for public use or laws merely regulate or, to use the term of the Dissent, burden the conduct of the affairs of
benefit, hence, an exercise of the power of eminent domain requiring the payment of just business establishments. In such cases, payment of just compensation is not required because
compensation. I We maintain that the discussion on eminent domain in Central Luzon Drug they fall within the sphere of permissible police power measures. The senior citizen discount law
Corporation91 is obiter dicta. As previously discussed, in Central Luzon Drug Corporation,92 the falls under this latter category. III The Dissent proceeds from the theory that the permanent
BIR, pursuant to Sections 2.i and 4 of RR No. 2-94, treated the senior citizen discount in the reduction of profits or income/gross sales, due to the 20% discount, is a "taking" of private
previous law, RA 7432, as a tax deduction instead of a tax credit despite the clear provision in that property for public purpose without payment of just compensation. At the outset, it must be
law which stated – emphasized that petitioners never presented any evidence to establish that they were forced to
suffer enormous losses or operate at a loss due to the effects of the assailed law. They came
SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the directly to this Court and provided a hypothetical computation of the loss they would allegedly
following: suffer due to the operation of the assailed law. The central premise of the Dissent’s argument that
a) The grant of twenty percent (20%) discount from all establishments relative to utilization of the 20% discount results in a permanent reduction in profits or income/gross sales, or forces a
transportation services, hotels and similar lodging establishment, restaurants and recreation business establishment to operate at a loss is, thus, wholly unsupported by competent evidence.
centers and purchase of medicines anywhere in the country: Provided, That private To be sure, the Court can invalidate a law which, on its face, is arbitrary, oppressive or
establishments may claim the cost as tax credit; (Emphasis supplied) confiscatory.97

Thus, the Court ruled that the subject revenue regulation violated the law, viz: But this is not the case here.

27
In the case at bar, evidence is indispensable before a determination of a constitutional violation That there may be a burden placed on business establishments or the consuming public as a
can be made because of the following reasons. First, the assailed law, by imposing the senior result of the operation of the assailed law is not, by itself, a ground to declare it unconstitutional for
citizen discount, does not take any of the properties used by a business establishment like, say, this goes into the wisdom and expediency of the law.
the land on which a manufacturing plant is constructed or the equipment being used to produce
goods or services. Second, rather than taking specific properties of a business establishment, the The cost of most, if not all, regulatory measures of the government on business establishments is
senior citizen discount law merely regulates the prices of the goods or services being sold to ultimately passed on to the consumers but that, by itself, does not justify the wholesale nullification
senior citizens by mandating a 20% discount. Thus, if a product is sold at ₱10.00 to the general of these measures. It is a basic postulate of our democratic system of government that the
public, then it shall be sold at ₱8.00 ( i.e., ₱10.00 less 20%) to senior citizens. Note that the law Constitution is a social contract whereby the people have surrendered their sovereign powers to
does not impose at what specific price the product shall be sold, only that a 20% discount shall be the State for the common good.107
given to senior citizens based on the price set by the business establishment. A business
establishment is, thus, free to adjust the prices of the goods or services it provides to the general All persons may be burdened by regulatory measures intended for the common good or to serve
public. Accordingly, it can increase the price of the above product to ₱20.00 but is required to sell some important governmental interest, such as protecting or improving the welfare of a special
it at ₱16.00 (i.e. , ₱20.00 less 20%) to senior citizens. Third, because the law impacts the prices of class of people for which the Constitution affords preferential concern. Indubitably, the one
the goods or services of a particular establishment relative to its sales to senior citizens, its profits assailing the law has the heavy burden of proving that the regulation is unreasonable, oppressive
or income/gross sales are affected. The extent of the impact would, however, depend on the profit or confiscatory, or has gone "too far" as to amount to a "taking." Yet, here, the Dissent would have
margin of the business establishment on a particular good or service. If a product costs ₱5.00 to this Court nullify the law without any proof of such nature.
produce and is sold at ₱10.00, then the profit98 is ₱5.0099 or a profit margin100 of 50%.101
Under the assailed law, the aforesaid product would have to be sold at ₱8.00 to senior citizens yet Further, this Court is not the proper forum to debate the economic theories or realities that
the business would still earn ₱3.00102 or a 30%103 profit margin. On the other hand, if the impelled Congress to shift from the tax credit to the tax deduction scheme. It is not within our
product costs ₱9.00 to produce and is required to be sold at ₱8.00 to senior citizens, then the power or competence to judge which scheme is more or less burdensome to business
business would experience a loss of ₱1.00.104 establishments or the consuming public and, thereafter, to choose which scheme the State should
use or pursue. The shift from the tax credit to tax deduction scheme is a policy determination by
But note that since not all customers of a business establishment are senior citizens, the business Congress and the Court will respect it for as long as there is no showing, as here, that the subject
establishment may continue to earn ₱1.00 from non-senior citizens which, in turn, can offset any regulation has transgressed constitutional limitations. Unavoidably, the lack of evidence constrains
loss arising from sales to senior citizens. the Dissent to rely on speculative and hypothetical argumentation when it states that the 20%
discount is a significant amount and not a minimal loss (which erroneously assumes that the
Fourth, when the law imposes the 20% discount in favor of senior citizens, it does not prevent the discount automatically results in a loss when it is possible that the profit margin is greater than
business establishment from revising its pricing strategy. 20% and/or the pricing strategy can be revised to prevent or mitigate any reduction in profits or
income/gross sales as illustrated above),108 and not all private establishments make a 20% profit
By revising its pricing strategy, a business establishment can recoup any reduction of profits or margin (which conversely implies that there are those who make more and, thus, would not be
income/gross sales which would otherwise arise from the giving of the 20% discount. To illustrate, greatly affected by this regulation).109
suppose A has two customers: X, a senior citizen, and Y, a non-senior citizen. Prior to the law, A
sells his products at ₱10.00 a piece to X and Y resulting in income/gross sales of ₱20.00 (₱10.00 In fine, because of the possible scenarios discussed above, we cannot assume that the 20%
+ ₱10.00). With the passage of the law, A must now sell his product to X at ₱8.00 (i.e., ₱10.00 discount results in a permanent reduction in profits or income/gross sales, much less that
less 20%) so that his income/gross sales would be ₱18.00 (₱8.00 + ₱10.00) or lower by ₱2.00. To business establishments are forced to operate at a loss under the assailed law. And, even if we
prevent this from happening, A decides to increase the price of his products to ₱11.11 per piece. gratuitously assume that the 20% discount results in some degree of reduction in profits or
Thus, he sells his product to X at ₱8.89 (i.e. , ₱11.11 less 20%) and to Y at ₱11.11. As a result, income/gross sales, we cannot assume that such reduction is arbitrary, oppressive or
his income/gross sales would still be ₱20.00105 (₱8.89 + ₱11.11). The capacity, then, of business confiscatory. To repeat, there is no actual proof to back up this claim, and it could be that the loss
establishments to revise their pricing strategy makes it possible for them not to suffer any suffered by a business establishment was occasioned through its fault or negligence in not
reduction in profits or income/gross sales, or, in the alternative, mitigate the reduction of their adapting to the effects of the assailed law. The law uniformly applies to all business
profits or income/gross sales even after the passage of the law. In other words, business establishments covered thereunder. There is, therefore, no unjust discrimination as the aforesaid
establishments have the capacity to adjust their prices so that they may remain profitable even business establishments are faced with the same constraints. The necessity of proof is all the
under the operation of the assailed law. more pertinent in this case because, as similarly observed by Justice Velasco in his Concurring
Opinion, the law has been in operation for over nine years now. However, the grim picture painted
The Dissent, however, states that – The explanation by the majority that private establishments by petitioners on the unconscionable losses to be indiscriminately suffered by business
can always increase their prices to recover the mandatory discount will only encourage private establishments, which should have led to the closure of numerous business establishments, has
establishments to adjust their prices upwards to the prejudice of customers who do not enjoy the not come to pass. Verily, we cannot invalidate the assailed law based on assumptions and
20% discount. It was likewise suggested that if a company increases its prices, despite the conjectures. Without adequate proof, the presumption of constitutionality must prevail. IV At this
application of the 20% discount, the establishment becomes more profitable than it was before the juncture, we note that the Dissent modified its original arguments by including a new paragraph, to
implementation of R.A. 7432. Such an economic justification is self-defeating, for more consumers wit:
will suffer from the price increase than will benefit from the 20% discount. Even then, such ability
to increase prices cannot legally validate a violation of the eminent domain clause.106 Section 9, Article III of the 1987 Constitution speaks of private property without any
distinction. It does not state that there should be profit before the taking of property is
But, if it is possible that the business establishment, by adjusting its prices, will suffer no reduction subject to just compensation. The private property referred to for purposes of taking
in its profits or income/gross sales (or suffer some reduction but continue to operate profitably) could be inherited, donated, purchased, mortgaged, or as in this case, part of the gross
despite giving the discount, what would be the basis to strike down the law? If it is possible that sales of private establishments. They are all private property and any taking should be
the business establishment, by adjusting its prices, will not be unduly burdened, how can there be attended by corresponding payment of just compensation. The 20% discount granted to
a finding that the assailed law is an unconstitutional exercise of police power or eminent domain? senior citizens belong to private establishments, whether these establishments make a

28
profit or suffer a loss. In fact, the 20% discount applies to non-profit establishments like shown to be unreasonable, oppressive or confiscatory, then the challenged governmental
country, social, or golf clubs which are open to the public and not only for exclusive regulation may be nullified for being a "taking" under the power of eminent domain. In such a
membership. The issue of profit or loss to the establishments is immaterial.110 case, it is not profits or income/gross sales which are actually taken and appropriated for public
use. Rather, when the regulation causes an establishment to incur losses in an unreasonable,
Two things may be said of this argument. First, it contradicts the rest of the arguments of the oppressive or confiscatory manner, what is actually taken is capital and the right of the business
Dissent. After it states that the issue of profit or loss is immaterial, the Dissent proceeds to argue establishment to a reasonable return on investment. If the business losses are not halted because
that the 20% discount is not a minimal loss111 and that the 20% discount forces business of the continued operation of the regulation, this eventually leads to the destruction of the business
establishments to operate at a loss.112 and the total loss of the capital invested therein. But, again, petitioners in this case failed to prove
that the subject regulation is unreasonable, oppressive or confiscatory.
Even the obiter in Central Luzon Drug Corporation,113 which the Dissent essentially adopts and
relies on, is premised on the permanent reduction of total revenues and the loss that business V.
establishments will be forced to suffer in arguing that the 20% discount constitutes a "taking" The Dissent further argues that we erroneously used price and rate of return on investment control
under the power of eminent domain. Thus, when the Dissent now argues that the issue of profit or laws to justify the senior citizen discount law. According to the Dissent, only profits from industries
loss is immaterial, it contradicts itself because it later argues, in order to justify that there is a imbued with public interest may be regulated because this is a condition of their franchises. Profits
"taking" under the power of eminent domain in this case, that the 20% discount forces business of establishments without franchises cannot be regulated permanently because there is no law
establishments to suffer a significant loss or to operate at a loss. Second, this argument suffers regulating their profits. The Dissent concludes that the permanent reduction of total revenues or
from the same flaw as the Dissent's original arguments. It is an erroneous characterization of the gross sales of business establishments without franchises is a taking of private property under the
20% discount. According to the Dissent, the 20% discount is part of the gross sales and, hence, power of eminent domain. In making this argument, it is unfortunate that the Dissent quotes only a
private property belonging to business establishments. However, as previously discussed, the portion of the ponencia – The subject regulation may be said to be similar to, but with substantial
20% discount is not private property actually owned and/or used by the business establishment. It distinctions from, price control or rate of return on investment control laws which are traditionally
should be distinguished from properties like lands or buildings actually used in the operation of a regarded as police power measures. These laws generally regulate public utilities or
business establishment which, if appropriated for public use, would amount to a "taking" under the industries/enterprises imbued with public interest in order to protect consumers from exorbitant or
power of eminent domain. Instead, the 20% discount is a regulatory measure which impacts the unreasonable pricing as well as temper corporate greed by controlling the rate of return on
pricing and, hence, the profitability of business establishments. At the time the discount is investment of these corporations considering that they have a monopoly over the goods or
imposed, no particular property of the business establishment can be said to be "taken." That is, services that they provide to the general public. The subject regulation differs therefrom in that (1)
the State does not acquire or take anything from the business establishment in the way that it the discount does not prevent the establishments from adjusting the level of prices of their goods
takes a piece of private land to build a public road. While the 20% discount may form part of the and services, and (2) the discount does not apply to all customers of a given establishment but
potential profits or income/gross sales114 of the business establishment, as similarly only to the class of senior citizens.
characterized by Justice Bersamin in his Concurring Opinion, potential profits or income/gross x x x116
sales are not private property, specifically cash or money, already belonging to the business
establishment. They are a mere expectancy because they are potential fruits of the successful The above paragraph, in full, states –
conduct of the business. Prior to the sale of goods or services, a business establishment may be The subject regulation may be said to be similar to, but with substantial distinctions from, price
subject to State regulations, such as the 20% senior citizen discount, which may impact the level control or rate of return on investment control laws which are traditionally regarded as police
or amount of profits or income/gross sales that can be generated by such establishment. For this power measures. These laws generally regulate public utilities or industries/enterprises imbued
reason, the validity of the discount is to be determined based on its overall effects on the with public interest in order to protect consumers from exorbitant or unreasonable pricing as well
operations of the business establishment. as temper corporate greed by controlling the rate of return on investment of these corporations
considering that they have a monopoly over the goods or services that they provide to the general
Again, as previously discussed, the 20% discount does not automatically result in a 20% reduction public. The subject regulation differs therefrom in that (1) the discount does not prevent the
in profits, or, to align it with the term used by the Dissent, the 20% discount does not mean that a establishments from adjusting the level of prices of their goods and services, and (2) the discount
20% reduction in gross sales necessarily results. Because (1) the profit margin of a product is not does not apply to all customers of a given establishment but only to the class of senior citizens.
necessarily less than 20%, (2) not all customers of a business establishment are senior citizens,
and (3) the establishment may revise its pricing strategy, such reduction in profits or income/gross Nonetheless, to the degree material to the resolution of this case, the 20% discount may be
sales may be prevented or, in the alternative, mitigated so that the business establishment properly viewed as belonging to the category of price regulatory measures which affects the
continues to operate profitably. Thus, even if we gratuitously assume that some degree of profitability of establishments subjected thereto. (Emphasis supplied)
reduction in profits or income/gross sales occurs because of the 20% discount, it does not follow
that the regulation is unreasonable, oppressive or confiscatory because the business The point of this paragraph is to simply show that the State has, in the past, regulated prices and
establishment may make the necessary adjustments to continue to operate profitably. No profits of business establishments. In other words, this type of regulatory measures is traditionally
evidence was presented by petitioners to show otherwise. In fact, no evidence was presented by recognized as police power measures so that the senior citizen discount may be considered as a
petitioners at all. Justice Leonen, in his Concurring and Dissenting Opinion, characterizes "profits" police power measure as well. What is more, the substantial distinctions between price and rate of
(or income/gross sales) as an inchoate right. Another way to view it, as stated by Justice Velasco return on investment control laws vis-à-vis the senior citizen discount law provide greater reason
in his Concurring Opinion, is that the business establishment merely has a right to profits. The to uphold the validity of the senior citizen discount law. As previously discussed, the ability to
Constitution adverts to it as the right of an enterprise to a reasonable return on investment.115 adjust prices allows the establishment subject to the senior citizen discount to prevent or mitigate
Undeniably, this right, like any other right, may be regulated under the police power of the State to any reduction of profits or income/gross sales arising from the giving of the discount. In contrast,
achieve important governmental objectives like protecting the interests and improving the welfare establishments subject to price and rate of return on investment control laws cannot adjust prices
of senior citizens. It should be noted though that potential profits or income/gross sales are accordingly. Certainly, there is no intention to say that price and rate of return on investment
relevant in police power and eminent domain analyses because they may, in appropriate cases, control laws are the justification for the senior citizen discount law. Not at all. The justification for
serve as an indicia when a regulation has gone "too far" as to amount to a "taking" under the the senior citizen discount law is the plenary powers of Congress. The legislative power to
power of eminent domain. When the deprivation or reduction of profits or income/gross sales is regulate business establishments is broad and covers a wide array of areas and subjects. It is well

29
within Congress’ legislative powers to regulate the profits or income/gross sales of industries and Police power as an attribute to promote the common good would be diluted considerably if on the
enterprises, even those without franchises. For what are franchises but mere legislative mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision
enactments? There is nothing in the Constitution that prohibits Congress from regulating the is invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect
profits or income/gross sales of industries and enterprises without franchises. On the contrary, the of the provision in question, there is no basis for its nullification in view of the presumption of
social justice provisions of the Constitution enjoin the State to regulate the "acquisition, ownership, validity which every law has in its favor.
use, and disposition" of property and its increments.117
xxxx
This may cover the regulation of profits or income/gross sales of all businesses, without
qualification, to attain the objective of diffusing wealth in order to protect and enhance the right of The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive
all the people to human dignity.118 pricing component of the business. While the Constitution protects property rights petitioners must
the realities of business and the State, in the exercise of police power, can intervene in the
Thus, under the social justice policy of the Constitution, business establishments may be operations of a business which may result in an impairment of property rights in the process.
compelled to contribute to uplifting the plight of vulnerable or marginalized groups in our society Moreover, the right to property has a social dimension. While Article XIII of the Constitution
provided that the regulation is not arbitrary, oppressive or confiscatory, or is not in breach of some provides the percept for the protection of property, various laws and jurisprudence, particularly on
specific constitutional limitation. When the Dissent, therefore, states that the "profits of private agrarian reform and the regulation of contracts and public utilities, continously serve as a reminder
establishments which are non-franchisees cannot be regulated permanently, and there is no such for the promotion of public good.
law regulating their profits permanently,"119 it is assuming what it ought to prove. First, there are
laws which, in effect, permanently regulate profits or income/gross sales of establishments without Undeniably, the success of the senior citizens program rests largely on the support imparted by
franchises, and RA 9257 is one such law. And, second, Congress can regulate such profits or petitioners and the other private establishments concerned. This being the case, the means
income/gross sales because, as previously noted, there is nothing in the Constitution to prevent it employed in invoking the active participation of the private sector, in order to achieve the purpose
from doing so. Here, again, it must be emphasized that petitioners failed to present any proof to or objective of the law, is reasonably and directly related. Without sufficient proof that Section 4(a)
show that the effects of the assailed law on their operations has been unreasonable, oppressive or of R.A. No. 9257 is arbitrary, and that the continued implementation of the same would be
confiscatory. The permanent regulation of profits or income/gross sales of business unconscionably detrimental to petitioners, the Court will refrain form quashing a legislative act.125
establishments, even those without franchises, is not as uncommon as the Dissent depicts it to be.
For instance, the minimum wage law allows the State to set the minimum wage of employees in a In conclusion, we maintain that the correct rule in determining whether the subject regulatory
given region or geographical area. Because of the added labor costs arising from the minimum measure has amounted to a "taking" under the power of eminent domain is the one laid down in
wage, a permanent reduction of profits or income/gross sales would result, assuming that the Alalayan v. National Power Corporation126 and followed in Carlos Superdurg Corporation127
employer does not increase the prices of his goods or services. To illustrate, suppose it costs a consistent with long standing principles in police power and eminent domain analysis. Thus, the
company ₱5.00 to produce a product and it sells the same at ₱10.00 with a 50% profit margin. deprivation or reduction of profits or income. Gross sales must be clearly shown to be
Later, the State increases the minimum wage. As a result, the company incurs greater labor costs unreasonable, oppressive or confiscatory. Under the specific circumstances of this case, such
so that it now costs ₱7.00 to produce the same product. The profit per product of the company determination can only be made upon the presentation of competent proof which petitioners failed
would be reduced to ₱3.00 with a profit margin of 30%. The net effect would be the same as in the to do. A law, which has been in operation for many years and promotes the welfare of a group
earlier example of granting a 20% senior citizen discount. As can be seen, the minimum wage law accorded special concern by the Constitution, cannot and should not be summarily invalidated on
could, likewise, lead to a permanent reduction of profits. Does this mean that the minimum wage a mere allegation that it reduces the profits or income/gross sales of business establishments.
law should, likewise, be declared unconstitutional on the mere plea that it results in a permanent
reduction of profits? Taking it a step further, suppose the company decides to increase the price of WHEREFORE, the Petition is hereby DISMISSED for lack of merit.
its product in order to offset the effects of the increase in labor cost; does this mean that the
minimum wage law, following the reasoning of the Dissent, is unconstitutional because the SO ORDERED.
consuming public is effectively made to subsidize the wage of a group of laborers, i.e., minimum
wage earners? The same reasoning can be adopted relative to the examples cited by the Dissent 114 The Dissent uses the term "gross sales" instead of "income" but "income" and "gross sales"
which, according to it, are valid police power regulations. Article 157 of the Labor Code, Sections are used in the same sense throughout this ponencia. That is, they are money derived from the
19 and 18 of the Social Security Law, and Section 7 of the Pag-IBIG Fund Law would effectively sale of goods or services. The reference to or mention of "income"/"gross sales", apart from
increase the labor cost of a business establishment.1âwphi1 This would, in turn, be integrated as "profits," is intentionally made because the 20% discount may cover more than the profits from the
part of the cost of its goods or services. Again, if the establishment does not increase its prices, sale of goods or services in cases where the profit margin is less than 20% and the business
the net effect would be a permanent reduction in its profits or income/gross sales. Following the establishment does not adjust its pricing strategy. Income/gross sales is a broader concept vis-a-
reasoning of the Dissent that "any form of permanent taking of private property (including profits or vis profits because income/gross sales less cost of the goods or services equals profits. If the
income/gross sales)120 is an exercise of eminent domain that requires the State to pay just subject regulation affects income/gross sales, then it follows that it affects profits and vice versa.
compensation,"121 then these statutory provisions would, likewise, have to be declared The shift in the use of terms, i.e., from "profits" to "gross sales," cannot erase or conceal the
unconstitutional. It does not matter that these benefits are deemed part of the employees’ materiality of profits or losses in determining the validity of the subject regulation in this case.
legislated wages because the net effect is the same, that is, it leads to higher labor costs and a 115 Article XIII, Section 3.
permanent reduction in the profits or income/gross sales of the business establishments.122 116 Dissenting Opinion, p. 12.
The point then is this – most, if not all, regulatory measures imposed by the State on business 117 Article XIII, Section 1 of the Constitution states: The Congress shall give highest priority to the
establishments impact, at some level, the latter’s prices and/or profits or income/gross sales.123 enactment of measures that protect and enhance the right of all the people to human dignity,
If the Court were to sustain the Dissent’s theory, then a wholesale nullification of such measures reduce social, economic, and political inequalities, and remove cultural inequities by equitably
would inevitably result. The police power of the State and the social justice provisions of the diffusing wealth and political power for the common good. To this end, the State shall regulate the
Constitution would, thus, be rendered nugatory. There is nothing sacrosanct about profits or acquisition, ownership, use, and disposition of property and its increments.
income/gross sales. This, we made clear in Carlos Superdrug Corporation:124

30
122 According to the Dissent, these statutorily mandated employee benefits are valid police power
measures because the employer is deemed fully compensated therefor as they form part of the
employee’s legislated wage. The Dissent confuses police power with eminent domain. In police
power, no compensation is required, and it is not necessary, as the Dissent mistakenly assumes,
to show that the employer is deemed fully compensated in order for the statutorily mandated
benefits to be a valid exercise of police power. It is immaterial whether the employer is deemed
fully compensated because the justification for these statutorily mandated benefits is the
overriding State interest to protect and uphold the welfare of employees. This State interest is
principally rooted in the historical abuses suffered by employees when employers solely
determined the terms and conditions of employment. Further, the direct or incidental benefit
derived by the employer (i.e., healthier work environment which presumably translates to more
productive employees) from these statutorily mandated benefits is not a requirement to make
them valid police power measures. Again, it is the paramount State interest in protecting the
welfare of employees which justifies these measures as valid exercises of police power subject, of
course, to the test of reasonableness as to the means adopted to achieve such legitimate ends.
That the assailed law benefits senior citizens and not employees of a business establishment
makes no material difference because, precisely, police power is employed to protect and uphold
the welfare of marginalized and vulnerable groups in our society. Police power would be a
meaningless State attribute if an individual, or a business establishment for that matter, can only
be compelled to accede to State regulations provided he (or it) is directly or incidentally benefited
thereby. Precisely in instances when the individual resists or opposes a regulation because it
burdens him or her that the State exercises its police power in order to uphold the common good.
Many laudable existing police power measures would have to be invalidated if, as a condition for
their validity, the individual subjected thereto should be directly or incidentally benefited by such
measures.

123 See De Leon and De Leon, Jr., Philippine Constitutional Law: Principles and Cases Vol. 1, at
671-673 (2012), for a list of police power measures upheld by this Court. A good number of these
measures impact, directly or indirectly, the profitability of business establishments yet the same
were upheld by the Court because they were not shown to be unreasonable, oppressive or
confiscatory.

31
3. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the
legislature, the Constitution, and not such ordinary act, must govern the case to which they both
apply.
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803) At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and
William Harper, by their counsel,
5 U.S. (1 Cranch) 137
Page 5 U. S. 138
severally moved the court for a rule to James Madison, Secretary of State of the United States, to
Syllabus
show cause why a mandamus should not issue commanding him to cause to be delivered to them
The clerks of the Department of State of the United States may be called upon to give evidence of
respectively their several commissions as justices of the peace in the District of Columbia. This
transactions in the Department which are not of a confidential character.
motion was supported by affidavits of the following facts: that notice of this motion had been given
The Secretary of State cannot be called upon as a witness to state transactions of a confidential
to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants
nature which may have occurred in his Department. But he may be called upon to give testimony
to the Senate for their advice and consent to be appointed justices of the peace of the District of
of circumstances which were not of that character.
Columbia; that the Senate advised and consented to the appointments; that commissions in due
Clerks in the Department of State were directed to be sworn, subject to objections to questions
form were signed by the said President appointing them justices, &c., and that the seal of the
upon confidential matters.
United States was in due form affixed to the said commissions by the Secretary of State; that the
Some point of time must be taken when the power of the Executive over an officer, not removable
applicants have requested Mr. Madison to deliver them their said commissions, who has not
at his will, must cease. That point of time must be when the constitutional power of appointment
complied with that request; and that their said commissions are withheld from them; that the
has been exercised. And the power has been exercised when the last act required from the
applicants have made application to Mr. Madison as Secretary of State of the United States at his
person possessing the power has been performed. This last act is the signature of the
office, for information whether the commissions were signed and sealed as aforesaid; that explicit
commission.
and satisfactory information has not been given in answer to that inquiry, either by the Secretary of
If the act of livery be necessary to give validity to the commission of an officer, it has been
State or any officer in the Department of State; that application has been made to the secretary of
delivered when executed, and given to the Secretary of State for the purpose of being sealed,
the Senate for a certificate of the nomination of the applicants, and of the advice and consent of
recorded, and transmitted to the party.
the Senate, who has declined giving such a certificate; whereupon a rule was made to show
In cases of commissions to public officers, the law orders the Secretary of State to record them.
cause on the fourth day of this term. This rule having been duly served,
When, therefore, they are signed and sealed, the order for their being recorded is given, and,
Page 5 U. S. 139
whether inserted inserted into the book or not, they are recorded.
Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and were
When the heads of the departments of the Government are the political or confidential officers of
required to give evidence, objected to be sworn, alleging that they were clerks in the Department
the Executive, merely to execute the will of the President, or rather to act in cases in which the
of State, and not bound to disclose any facts relating to the business or transactions of the office.
Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than
The court ordered the witnesses to be sworn, and their answers taken in writing, but informed
that their acts are only politically examinable. But where a specific duty is assigned by law, and
them that, when the questions were asked, they might state their objections to answering each
individual rights depend upon the performance of that duty, it seems equally clear that the
particular question, if they had any.
individual who considers himself injured has a right to resort to the laws of his country for a
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the
remedy.
affidavits occurred, was called upon to give testimony. He objected to answering. The questions
The President of the United States, by signing the commission, appointed Mr. Marbury a justice of
were put in writing.
the peace for the County of Washington, in the District of Columbia, and the seal of the United
The court said there was nothing confidential required to be disclosed. If there had been, he was
States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the
not obliged to answer it, and if he thought anything was communicated to him confidentially, he
signature, and of the completion of the appointment; and the appointment conferred on him a legal
was not bound to disclose, nor was he obliged to state anything which would criminate himself.
right to the office for the space of five years. Having this legal right to the office, he has a
The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can
consequent right to the commission, a refusal to deliver which is a plain violation of that right for
award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any case
which the laws of the country afford him a remedy.
whatever. 3. Whether, in the present case, the Court may award a mandamus to James Madison,
To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom,
Secretary of State.
on legal principles, such writ must be directed, and the person applying for it must be without any
Page 5 U. S. 153
other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is withheld
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
from the person entitled to it, an action of detinue for the commission against the Secretary of
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case
State who refuses to deliver it is not the proper remedy, as the judgment in detinue is for the thing
requiring the Secretary of State to show cause why a mandamus
itself, or its value. The value of a public office, not to be sold, is incapable of being ascertained. It
Page 5 U. S. 154
is a plain case for a mandamus, either to deliver the commission or a copy of it from the record.
should not issue directing him to deliver to William Marbury his commission as a justice of the
To enable the Court to issue a mandamus to compel the delivery of the commission of a public
peace for the county of Washington, in the District of Columbia.
office by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of
that it be necessary to enable them to exercise appellate jurisdiction.
this case, the novelty of some of its circumstances, and the real difficulty attending the points
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a
which occur in it require a complete exposition of the principles on which the opinion to be given
cause already instituted, and does not create the cause.
by the Court is founded.
The authority given to the Supreme Court by the act establishing the judicial system of the United
These principles have been, on the side of the applicant, very ably argued at the bar. In rendering
States to issue writs of mandamus to public officers appears not to be warranted by the
the opinion of the Court, there will be some departure in form, though not in substance, from the
Constitution.
points stated in that argument.
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the
rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with
each other, the Court must decide on the operation of each.

32
In the order in which the Court has viewed this subject, the following questions have been departments;" thus contemplating cases where the law may direct the President to commission an
considered and decided. officer appointed by the Courts or by the heads of departments. In such a case, to issue a
commission would be apparently a duty distinct from the appointment, the performance of which
1. Has the applicant a right to the commission he demands? perhaps could not legally be refused.
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy? Although that clause of the Constitution which requires the President to commission all the officers
3. If they do afford him a remedy, is it a mandamus issuing from this court? of the United States may never have been applied to officers appointed otherwise than by himself,
yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the
The first object of inquiry is: constitutional distinction between the appointment to an office and the commission of an officer
who has been appointed remains the same as if in practice the President had commissioned
1. Has the applicant a right to the commission he demands? officers appointed by an authority other than his own.
His right originates in an act of Congress passed in February, 1801, concerning the District of
Columbia. It follows too from the existence of this distinction that, if an appointment was to be evidenced by
After dividing the district into two counties, the eleventh section of this law enacts, any public act other than the commission, the performance of such public act would create the
"that there shall be appointed in and for each of the said counties such number of discreet persons officer, and if he was not removable at the will of the President, would either give him a right to his
to be justices of the peace as the President of the United States shall, from time to time, think commission or enable him to perform the duties without it.
expedient, to continue in office for five years. " These observations are premised solely for the purpose of rendering more intelligible those which
Page 5 U. S. 155 apply more directly to the particular case under consideration.
Page 5 U. S. 157
It appears from the affidavits that, in compliance with this law, a commission for William Marbury
as a justice of peace for the County of Washington was signed by John Adams, then President of This is an appointment made by the President, by and with the advice and consent of the Senate,
the United States, after which the seal of the United States was affixed to it, but the commission and is evidenced by no act but the commission itself. In such a case, therefore, the commission
has never reached the person for whom it was made out. and the appointment seem inseparable, it being almost impossible to show an appointment
In order to determine whether he is entitled to this commission, it becomes necessary to inquire otherwise than by proving the existence of a commission; still, the commission is not necessarily
whether he has been appointed to the office. For if he has been appointed, the law continues him the appointment; though conclusive evidence of it.
in office for five years, and he is entitled to the possession of those evidences of office, which,
being completed, became his property. But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment, being the sole act of the
The second section of the second article of the Constitution declares, President, must be completely evidenced when it is shown that he has done everything to be
performed by him.
"The President shall nominate, and, by and with the advice and consent of the Senate, shall Should the commission, instead of being evidence of an appointment, even be considered as
appoint ambassadors, other public ministers and consuls, and all other officers of the United constituting the appointment itself, still it would be made when the last act to be done by the
States, whose appointments are not otherwise provided for." President was performed, or, at furthest, when the commission was complete.
The last act to be done by the President is the signature of the commission. He has then acted on
The third section declares, that "He shall commission all the officers of the United States." the advice and consent of the Senate to his own nomination. The time for deliberation has then
An act of Congress directs the Secretary of State to keep the seal of the United States, passed. He has decided. His judgment, on the advice and consent of the Senate concurring with
"to make out and record, and affix the said seal to all civil commissions to officers of the United his nomination, has been made, and the officer is appointed. This appointment is evidenced by an
States to be appointed by the President, by and with the consent of the Senate, or by the open, unequivocal act, and, being the last act required from the person making it, necessarily
President alone; provided that the said seal shall not be affixed to any commission before the excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete
same shall have been signed by the President of the United States." transaction.
Some point of time must be taken when the power of the Executive over an officer, not removable
These are the clauses of the Constitution and laws of the United States which affect this part of at his will, must cease. That point of time must be when the constitutional power of appointment
the case. They seem to contemplate three distinct operations: has been exercised. And this power has been exercised when the last act required from the
person possessing the power has been performed. This last act is the signature of the
1. The nomination. This is the sole act of the President, and is completely voluntary. commission. This idea seems to have prevailed with the Legislature when the act passed
2. The appointment. This is also the act of the President, and is also a voluntary act, converting the Department of Foreign Affairs into the Department of State. By that act, it is
though it can only be performed by and with the advice and consent of the Senate. enacted that the Secretary of State shall keep the seal of the United States, "and shall make out
Page 5 U. S. 156 and record, and shall affix the said seal to all civil commissions to officers of the United States, to
3. The commission. To grant a commission to a person appointed might perhaps be be appointed by the President: . . . provided that the said seal shall not be affixed to any
deemed a duty enjoined by the Constitution. "He shall," says that instrument, commission before the same shall have been signed by the President of the United States, nor to
"commission all the officers of the United States." any other instrument or act without the special warrant of the President therefor."

The acts of appointing to office and commissioning the person appointed can scarcely be The signature is a warrant for affixing the great seal to the commission, and the great seal is only
considered as one and the same, since the power to perform them is given in two separate and to be affixed to an instrument which is complete. It attests, by an act supposed to be of public
distinct sections of the Constitution. The distinction between the appointment and the commission notoriety, the verity of the Presidential signature.
will be rendered more apparent by adverting to that provision in the second section of the second
article of the Constitution which authorises Congress"to vest by law the appointment of such It is never to be affixed till the commission is signed, because the signature, which gives force and
inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of effect to the commission, is conclusive evidence that the appointment is made.

33
The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, It may have some tendency to elucidate this point to inquire whether the possession of the original
and not to be guided by the will of the President. He is to affix the seal of the United States to the commission be indispensably necessary to authorize a person appointed to any office to perform
commission, and is to record it. the duties of that office. If it was necessary, then a loss of the commission would lose the office.
Not only negligence, but accident or fraud, fire or theft might deprive an individual of his office. In
This is not a proceeding which may be varied if the judgment of the Executive shall suggest one such a case, I presume it could not be doubted but that a copy from the record of the Office of the
more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It Secretary of State would be, to every intent and purpose, equal to the original. The act of
is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United Congress has expressly made it so. To give that copy validity, it would not be necessary to prove
States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the that the original had been transmitted and afterwards lost. The copy would be complete evidence
bar, under the authority of law, and not by the instructions of the President. It is a ministerial act that the original had existed, and that the appointment had been made, but not that the original
which the law enjoins on a particular officer for a particular purpose. had been transmitted. If indeed it should appear that the original had been mislaid in the Office of
State, that circumstance would not affect the operation of the copy. When all the requisites have
If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity been performed which authorize a recording officer to record any instrument whatever, and the
of the commission, but even to the completion of an appointment, still, when the seal is affixed, the order for that purpose has been given, the instrument is in law considered as recorded, although
appointment is made, and the commission is valid. No other solemnity is required by law; no other the manual labour of inserting it in a book kept for that purpose may not have been performed.
act is to be performed on the part of government. All that the Executive can do to invest the In the case of commissions, the law orders the Secretary of State to record them. When,
person with his office is done, and unless the appointment be then made, the Executive cannot therefore, they are signed and sealed, the order for their being recorded is given, and, whether
make one without the cooperation of others. inserted in the book or not, they are in law recorded.

After searching anxiously for the principles on which a contrary opinion may be supported, none A copy of this record is declared equal to the original, and the fees to be paid by a person
has been found which appear of sufficient force to maintain the opposite doctrine. requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a
Such as the imagination of the Court could suggest have been very deliberately examined, and commission which has been recorded? Or can he refuse a copy thereof to a person demanding it
after allowing them all the weight which it appears possible to give them, they do not shake the on the terms prescribed by law?
opinion which has been formed. Such a copy would, equally with the original, authorize the justice of peace to proceed in the
performance of his duty, because it would, equally with the original, attest his appointment.
In considering this question, it has been conjectured that the commission may have been
assimilated to a deed to the validity of which delivery is essential. If the transmission of a commission be not considered as necessary to give validity to an
appointment, still less is its acceptance. The appointment is the sole act of the President; the
This idea is founded on the supposition that the commission is not merely evidence of an acceptance is the sole act of the officer, and is, in plain common sense, posterior to the
appointment, but is itself the actual appointment -- a supposition by no means unquestionable. appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is
But, for the purpose of examining this objection fairly, let it be conceded that the principle claimed capable of rendering the appointment a nonentity.
for its support is established. That this is the understanding of the government is apparent from the whole tenor of its conduct.
The appointment being, under the Constitution, to be made by the President personally, the A commission bears date, and the salary of the officer commences from his appointment, not from
delivery of the deed of appointment, if necessary to its completion, must be made by the President the transmission or acceptance of his commission. When a person appointed to any office refuses
also. It is not necessary that the livery should be made personally to the grantee of the office; it to accept that office, the successor is nominated in the place of the person who has declined to
never is so made. The law would seem to contemplate that it should be made to the Secretary of accept, and not in the place of the person who had been previously in office and had created the
State, since it directs the secretary to affix the seal to the commission after it shall have been original vacancy.
signed by the President. If then the act of livery be necessary to give validity to the commission, it
has been delivered when executed and given to the Secretary for the purpose of being sealed, It is therefore decidedly the opinion of the Court that, when a commission has been signed by the
recorded, and transmitted to the party. President, the appointment is made, and that the commission is complete when the seal of the
But in all cases of letters patent, certain solemnities are required by law, which solemnities are the United States has been affixed to it by the Secretary of State.
evidences of the validity of the instrument. A formal delivery to the person is not among them. In
cases of commissions, the sign manual of the President and the seal of the United States are Where an officer is removable at the will of the Executive, the circumstance which completes his
those solemnities. This objection therefore does not touch the case. appointment is of no concern, because the act is at any time revocable, and the commission may
be arrested if still in the office. But when the officer is not removable at the will of the Executive,
It has also occurred as possible, and barely possible, that the transmission of the commission and the appointment is not revocable, and cannot be annulled. It has conferred legal rights which
the acceptance thereof might be deemed necessary to complete the right of the plaintiff. cannot be resumed.
The transmission of the commission is a practice directed by convenience, but not by law. It
cannot therefore be necessary to constitute the appointment, which must precede it and which is The discretion of the Executive is to be exercised until the appointment has been made. But
the mere act of the President. If the Executive required that every person appointed to an office having once made the appointment, his power over the office is terminated in all cases, where by
should himself take means to procure his commission, the appointment would not be the less valid law the officer is not removable by him. The right to the office is then in the person appointed, and
on that account. The appointment is the sole act of the President; the transmission of the he has the absolute, unconditional power of accepting or rejecting it.
commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or
retarded by circumstances which can have no influence on the appointment. A commission is Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary
transmitted to a person already appointed, not to a person to be appointed or not, as the letter of State, was appointed, and as the law creating the office gave the officer a right to hold for five
enclosing the commission should happen to get into the post office and reach him in safety, or to years independent of the Executive, the appointment was not revocable, but vested in the officer
miscarry. legal rights which are protected by the laws of his country.

34
To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but of the character of the person against whom the complaint is made? Is it to be contended that the
violative of a vested legal right. heads of departments are not amenable to the laws of their country?

This brings us to the second inquiry, which is: Whatever the practice on particular occasions may be, the theory of this principle will certainly
2. If he has a right, and that right has been violated, do the laws of his country afford him a never be maintained.
remedy?
Page 5 U. S. 163 No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from
the doctrines of the common law. After stating that personal injury from the King to a subject is
The very essence of civil liberty certainly consists in the right of every individual to claim the presumed to be impossible, Blackstone, Vol. III. p. 255, says,"but injuries to the rights of property
protection of the laws whenever he receives an injury. One of the first duties of government is to can scarcely be committed by the Crown without the intervention of its officers, for whom, the law,
afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting
and he never fails to comply with the judgment of his court. the errors and misconduct of those agents by whom the King has been deceived and induced to
do a temporary injustice."
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy
is afforded by mere operation of law. By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river,
the purchaser, on paying his purchase money, becomes completely entitled to the property
"In all other cases," he says, purchased, and, on producing to the Secretary of State the receipt of the treasurer upon a
"it is a general and indisputable rule that where there is a legal right, there is also a legal remedy certificate required by the law, the President of the United States is authorized to grant him a
by suit or action at law whenever that right is invaded." patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and
And afterwards, page 109 of the same volume, he says, recorded in his office. If the Secretary of State should choose to withhold this patent, or, the patent
"I am next to consider such injuries as are cognizable by the Courts of common law. And herein I being lost, should refuse a copy of it, can it be imagined that the law furnishes to the injured
shall for the present only remark that all possible injuries whatsoever that did not fall within the person no remedy?
exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very
reason, within the cognizance of the common law courts of justice, for it is a settled and invariable It is not believed that any person whatever would attempt to maintain such a proposition.
principle in the laws of England that every right, when withheld, must have a remedy, and every It follows, then, that the question whether the legality of an act of the head of a department be
injury its proper redress." examinable in a court of justice or not must always depend on the nature of that act.
The Government of the United States has been emphatically termed a government of laws, and If some acts be examinable and others not, there must be some rule of law to guide the Court in
not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the exercise of its jurisdiction.
the violation of a vested legal right.
In some instances, there may be difficulty in applying the rule to particular cases; but there cannot,
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar it is believed, be much difficulty in laying down the rule.
character of the case. By the Constitution of the United States, the President is invested with certain important political
powers, in the exercise of which he is to use his own discretion, and is accountable only to his
It behooves us, then, to inquire whether there be in its composition any ingredient which shall country in his political character and to his own conscience. To aid him in the performance of
exempt from legal investigation or exclude the injured party from legal redress. In pursuing this these duties, he is authorized to appoint certain officers, who act by his authority and in conformity
inquiry, the first question which presents itself is whether this can be arranged with that class of with his orders.
cases which come under the description of damnum absque injuria -- a loss without an injury.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in
This description of cases never has been considered, and, it is believed, never can be considered, which executive discretion may be used, still there exists, and can exist, no power to control that
as comprehending offices of trust, of honour or of profit. The office of justice of peace in the discretion. The subjects are political. They respect the nation, not individual rights, and, being
District of Columbia is such an office; it is therefore worthy of the attention and guardianship of the entrusted to the Executive, the decision of the Executive is conclusive. The application of this
laws. It has received that attention and guardianship. It has been created by special act of remark will be perceived by adverting to the act of Congress for establishing the Department of
Congress, and has been secured, so far as the laws can give security to the person appointed to Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to
fill it, for five years. It is not then on account of the worthlessness of the thing pursued that the the will of the President. He is the mere organ by whom that will is communicated. The acts of
injured party can be alleged to be without remedy. such an officer, as an officer, can never be examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is directed
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be peremptorily to perform certain acts; when the rights of individuals are dependent on the
considered as a mere political act belonging to the Executive department alone, for the performance of those acts; he is so far the officer of the law, is amenable to the laws for his
performance of which entire confidence is placed by our Constitution in the Supreme Executive, conduct, and cannot at his discretion, sport away the vested rights of others.
and for any misconduct respecting which the injured individual has no remedy?
The conclusion from this reasoning is that, where the heads of departments are the political or
That there may be such cases is not to be questioned. but that every act of duty to be performed confidential agents of the Executive, merely to execute the will of the President, or rather to act in
in any of the great departments of government constitutes such a case is not to be admitted. cases in which the Executive possesses a constitutional or legal discretion, nothing can be more
By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to place on perfectly clear than that their acts are only politically examinable. But where a specific duty is
the pension list all persons whose names are contained in a report previously made by him to assigned by law, and individual rights depend upon the performance of that duty, it seems equally
Congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be clear that the individual who considers himself injured has a right to resort to the laws of his
contended that where the law, in precise terms, directs the performance of an act in which an country for a remedy.
individual is interested, the law is incapable of securing obedience to its mandate? Is it on account If this be the rule, let us inquire how it applies to the case under the consideration of the Court.

35
Page 5 U. S. 167
In the same case, he says,"this writ ought to be used upon all occasions where the law has
The power of nominating to the Senate, and the power of appointing the person nominated, are established no specific remedy, and where in justice and good government there ought to be one."
political powers, to be exercised by the President according to his own discretion. When he has
made an appointment, he has exercised his whole power, and his discretion has been completely In addition to the authorities now particularly cited, many others were relied on at the bar which
applied to the case. If, by law, the officer be removable at the will of the President, then a new show how far the practice has conformed to the general doctrines that have been just quoted.
appointment may be immediately made, and the rights of the officer are terminated. But as a fact This writ, if awarded, would be directed to an officer of government, and its mandate to him would
which has existed cannot be made never to have existed, the appointment cannot be annihilated, be, to use the words of Blackstone,"to do a particular thing therein specified, which appertains to
and consequently, if the officer is by law not removable at the will of the President, the rights he his office and duty and which the Court has previously determined or at least supposes to be
has acquired are protected by the law, and are not resumable by the President. They cannot be consonant to right and justice."
extinguished by Executive authority, and he has the privilege of asserting them in like manner as if
they had been derived from any other source. Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of
The question whether a right has vested or not is, in its nature, judicial, and must be tried by the public concern, and is kept out of possession of that right.
judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and proceeded
to act as one, in consequence of which a suit had been instituted against him in which his defence These circumstances certainly concur in this case.
had depended on his being a magistrate; the validity of his appointment must have been
determined by judicial authority. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be
So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission one to whom, on legal principles, such writ may be directed, and the person applying for it must be
which has been made out for him or to a copy of that commission, it is equally a question without any other specific and legal remedy.
examinable in a court, and the decision of the Court upon it must depend on the opinion
entertained of his appointment. 1. With respect to the officer to whom it would be directed. The intimate political relation,
That question has been discussed, and the opinion is that the latest point of time which can be subsisting between the President of the United States and the heads of departments, necessarily
taken as that at which the appointment was complete and evidenced was when, after the renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well
signature of the President, the seal of the United States was affixed to the commission. as delicate, and excites some hesitation with respect to the propriety of entering into such
investigation. Impressions are often received without much reflection or examination, and it is not
It is then the opinion of the Court: wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of
justice, to which claims it is the duty of that court to attend, should, at first view, be considered by
1. That, by signing the commission of Mr. Marbury, the President of the United States some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the
appointed him a justice of peace for the County of Washington in the District of Executive.
Columbia, and that the seal of the United States, affixed thereto by the Secretary of
State, is conclusive testimony of the verity of the signature, and of the completion It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An
of the appointment, and that the appointment conferred on him a legal right to the extravagance so absurd and excessive could not have been entertained for a moment. The
office for the space of five years. province of the Court is solely to decide on the rights of individuals, not to inquire how the
Executive or Executive officers perform duties in which they have a discretion. Questions, in their
2. That, having this legal title to the office, he has a consequent right to the nature political or which are, by the Constitution and laws, submitted to the Executive, can never
commission, a refusal to deliver which is a plain violation of that right, for which the be made in this court.
laws of his country afford him a remedy. It remains to be inquired whether, But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it
respects a paper which, according to law, is upon record, and to a copy of which the law gives a
3. He is entitled to the remedy for which he applies. This depends on: right, on the payment of ten cents; if it be no intermeddling with a subject over which the Executive
1. The nature of the writ applied for, and can be considered as having exercised any control; what is there in the exalted station of the
2. The power of this court. officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a
court to listen to the claim or to issue a mandamus directing the performance of a duty not
1. The nature of the writ. depending on Executive discretion, but on particular acts of Congress and the general principles
of law?
Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be
"a command issuing in the King's name from the Court of King's Bench, and directed to any If one of the heads of departments commits any illegal act under colour of his office by which an
person, corporation, or inferior court of judicature within the King's dominions requiring them to do individual sustains an injury, it cannot be pretended that his office alone exempts him from being
some particular thing therein specified which appertains to their office and duty, and which the sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.
Court of King's Bench has previously determined, or at least supposes, to be consonant to right How then can his office exempt him from this particular mode of deciding on the legality of his
and justice." conduct if the case be such a case as would, were any other individual the party complained of,
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much authorize the process?
precision and explicitness the cases in which this writ may be used. It is not by the office of the person to whom the writ is directed, but the nature of the thing to be
done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the
"Whenever," says that very able judge,"there is a right to execute an office, perform a service, or head of a department acts in a case in which Executive discretion is to be exercised, in which he
exercise a franchise (more especially if it be in a matter of public concern or attended with profit), is the mere organ of Executive will, it is again repeated, that any application to a court to control, in
and a person is kept out of possession, or dispossessed of such right, and has no other specific any respect, his conduct, would be rejected without hesitation.
legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ
expresses, and upon reasons of public policy, to preserve peace, order and good government."

36
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in It was at first doubted whether the action of detinue was not a specific legal remedy for the
the performance of which he is not placed under the particular direction of the President, and the commission which has been withheld from Mr. Marbury, in which case a mandamus would be
performance of which the President cannot lawfully forbid, and therefore is never presumed to improper. But this doubt has yielded to the consideration that the judgment in detinue is for the
have forbidden -- as for example, to record a commission, or a patent for land, which has received thing itself, or its value. The value of a public office not to be sold is incapable of being
all the legal solemnities; or to give a copy of such record -- in such cases, it is not perceived on ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the office
what ground the Courts of the country are further excused from the duty of giving judgment that by obtaining the commission or a copy of it from the record.
right to be done to an injured individual than if the same services were to be performed by a This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the
person not the head of a department. record, and it only remains to be inquired:
This opinion seems not now for the first time to be taken up in this country.
Whether it can issue from this Court.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on
the pension list such disabled officers and soldiers as should be reported to him by the Circuit The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue
Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; writs of mandamus, in cases warranted by the principles and usages of law, to any courts
but some of the judges, thinking that the law might be executed by them in the character of appointed, or persons holding office, under the authority of the United States."
commissioners, proceeded to act and to report in that character.
The Secretary of State, being a person, holding an office under the authority of the United States,
This law being deemed unconstitutional at the circuits, was repealed, and a different system was is precisely within the letter of the description, and if this Court is not authorized to issue a writ of
established; but the question whether those persons who had been reported by the judges, as mandamus to such an officer, it must be because the law is unconstitutional, and therefore
commissioners, were entitled, in consequence of that report, to be placed on the pension list was absolutely incapable of conferring the authority and assigning the duties which its words purport to
a legal question, properly determinable in the Courts, although the act of placing such persons on confer and assign.
the list was to be performed by the head of a department. The Constitution vests the whole judicial power of the United States in one Supreme Court, and
such inferior courts as Congress shall, from time to time, ordain and establish. This power is
That this question might be properly settled, Congress passed an act in February, 1793, making it expressly extended to all cases arising under the laws of the United States; and consequently, in
the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures some form, may be exercised over the present case, because the right claimed is given by a law
as might be necessary to obtain an adjudication of the Supreme Court of the United States on the of the United States.
validity of any such rights, claimed under the act aforesaid.
In the distribution of this power. it is declared that "The Supreme Court shall have original
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in
commanding him to place on the pension list a person stating himself to be on the report of the which a state shall be a party. In all other cases, the Supreme Court shall have appellate
judges. jurisdiction."
There is, therefore, much reason to believe that this mode of trying the legal right of the It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior
complainant was deemed by the head of a department, and by the highest law officer of the courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no
United States, the most proper which could be selected for the purpose. negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to
When the subject was brought before the Court, the decision was not that a mandamus would not that Court in other cases than those specified in the article which has been recited, provided those
lie to the head of a department directing him to perform an act enjoined by law, in the performance cases belong to the judicial power of the United States.
of which an individual had a vested interest, but that a mandamus ought not to issue in that case --
the decision necessarily to be made if the report of the commissioners did not confer on the If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power
applicant a legal right. between the Supreme and inferior courts according to the will of that body, it would certainly have
The judgment in that case is understood to have decided the merits of all claims of that been useless to have proceeded further than to have defined the judicial power and the tribunals
description, and the persons, on the report of the commissioners, found it necessary to pursue the in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely
mode prescribed by the law subsequent to that which had been deemed unconstitutional in order without meaning -- if such is to be the construction. If Congress remains at liberty to give this court
to place themselves on the pension list. appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and
original jurisdiction where the Constitution has declared it shall be appellate, the distribution of
The doctrine, therefore, now advanced is by no means a novel one. jurisdiction made in the Constitution, is form without substance.

It is true that the mandamus now moved for is not for the performance of an act expressly Affirmative words are often, in their operation, negative of other objects than those affirmed, and,
enjoined by statute. in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and
It is to deliver a commission, on which subjects the acts of Congress are silent. This difference is therefore such construction is inadmissible unless the words require it.
not considered as affecting the case. It has already been stated that the applicant has, to that
commission, a vested legal right of which the Executive cannot deprive him. He has been If the solicitude of the Convention respecting our peace with foreign powers induced a provision
appointed to an office from which he is not removable at the will of the Executive, and, being so that the Supreme Court should take original jurisdiction in cases which might be supposed to
appointed, he has a right to the commission which the Secretary has received from the President affect them, yet the clause would have proceeded no further than to provide for such cases if no
for his use. The act of Congress does not, indeed, order the Secretary of State to send it to him, further restriction on the powers of Congress had been intended. That they should have appellate
but it is placed in his hands for the person entitled to it, and cannot be more lawfully withheld by jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction
him than by another person. unless the words be deemed exclusive of original jurisdiction.

37
When an instrument organizing fundamentally a judicial system divides it into one Supreme and Certainly all those who have framed written Constitutions contemplate them as forming the
so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, fundamental and paramount law of the nation, and consequently the theory of every such
and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by government must be that an act of the Legislature repugnant to the Constitution is void.
declaring the cases in which it shall take original jurisdiction, and that in others it shall take This theory is essentially attached to a written Constitution, and is consequently to be considered
appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight
jurisdiction is original, and not appellate; in the other, it is appellate, and not original. ,If any other of in the further consideration of this subject.
construction would render the clause inoperative, that is an additional reason for rejecting such
other construction, and for adhering to the obvious meaning. If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its
invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. what was established in theory, and would seem, at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more attentive consideration.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, It is emphatically the province and duty of the Judicial Department to say what the law is. Those
and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two
will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. laws conflict with each other, the Courts must decide on the operation of each.
Page 5 U. S. 178
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a
cause already instituted, and does not create that case. Although, therefore, a mandamus may be So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a
directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the particular case, so that the Court must either decide that case conformably to the law,
same as to sustain an original action for that paper, and therefore seems not to belong to disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court
appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the must determine which of these conflicting rules governs the case. This is of the very essence of
Court to exercise its appellate jurisdiction. judicial duty.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary
the United States to issue writs of mandamus to public officers appears not to be warranted by the act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which
Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be they both apply.
exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a Those, then, who controvert the principle that the Constitution is to be considered in court as a
question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its paramount law are reduced to the necessity of maintaining that courts must close their eyes on
interest. It seems only necessary to recognise certain principles, supposed to have been long and the Constitution, and see only the law.
well established, to decide it.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an
That the people have an original right to establish for their future government such principles as, in act which, according to the principles and theory of our government, is entirely void, is yet, in
their opinion, shall most conduce to their own happiness is the basis on which the whole American practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly
fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be
ought it to be frequently repeated. The principles, therefore, so established are deemed giving to the Legislature a practical and real omnipotence with the same breath which professes to
fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may
are designed to be permanent. be passed at pleasure.
This original and supreme will organizes the government and assigns to different departments
their respective powers. It may either stop here or establish certain limits not to be transcended by That it thus reduces to nothing what we have deemed the greatest improvement on political
those departments. institutions -- a written Constitution, would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for rejecting the construction. But the
The Government of the United States is of the latter description. The powers of the Legislature are peculiar expressions of the Constitution of the United States furnish additional arguments in favour
defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is of its rejection.
written. To what purpose are powers limited, and to what purpose is that limitation committed to The judicial power of the United States is extended to all cases arising under the Constitution.
writing, if these limits may at any time be passed by those intended to be restrained? The
distinction between a government with limited and unlimited powers is abolished if those limits do Could it be the intention of those who gave this power to say that, in using it, the Constitution
not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of should not be looked into? That a case arising under the Constitution should be decided without
equal obligation. It is a proposition too plain to be contested that the Constitution controls any examining the instrument under which it arises?
legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
This is too extravagant to be maintained.
Between these alternatives there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, In some cases then, the Constitution must be looked into by the judges. And if they can open it at
and, like other acts, is alterable when the legislature shall please to alter it. all, what part of it are they forbidden to read or to obey?

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not There are many other parts of the Constitution which serve to illustrate this subject.
law; if the latter part be true, then written Constitutions are absurd attempts on the part of the It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty
people to limit a power in its own nature illimitable. on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to

38
be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see
the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it, must the
Court condemn to death those victims whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court."
Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly
for them, a rule of evidence not to be departed from. If the Legislature should change that rule,
and declare one witness, or a confession out of court, sufficient for conviction, must the
constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent that the framers of the
Constitution contemplated that instrument as a rule for the government of courts, as well as of the
Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in
an especial manner to their conduct in their official character. How immoral to impose it on them if
they were to be used as the instruments, and the knowing instruments, for violating what they
swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative
opinion on this subject. It is in these words:

"I do solemnly swear that I will administer justice without respect to persons, and do
equal right to the poor and to the rich; and that I will faithfully and impartially discharge
all the duties incumbent on me as according to the best of my abilities and
understanding, agreeably to the Constitution and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States
if that Constitution forms no rule for his government? if it is closed upon him and cannot be
inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this
oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of
the land, the Constitution itself is first mentioned, and not the laws of the United States generally,
but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens
the principle, supposed to be essential to all written Constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.

39
4. EN BANC x--------------------------------------------------------x
ARTURO M. DE CASTRO,
Intervenor.
RAUL L. LAMBINO and ERICO B. G.R. No. 174153 x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE
AUMENTADO, TOGETHER WITH
PHILIPPINES,
6,327,952 REGISTERED VOTERS,
Intervenor.
Petitioners,
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO,
- versus -
Intervenor.
x ------------------------------------------------------- x
THE COMMISSION ON ELECTIONS, PHILIPPINE CONSTITUTION
Respondent. ASSOCIATION (PHILCONSA), CONRADO
x--------------------------------------------------------x F. ESTRELLA, TOMAS C. TOLEDO,
MARIANO M. TAJON, FROILAN M.
ALTERNATIVE LAW GROUPS, INC., BACUNGAN, JOAQUIN T. VENUS, JR.,
Intervenor. FORTUNATO P. AGUAS, and AMADO
x ------------------------------------------------------ x GAT INCIONG,
Intervenors.
ONEVOICE INC., CHRISTIAN S. x ------------------------------------------------------- x
MONSOD, RENE B. AZURIN, RONALD L. ADAMAT, ROLANDO
MANUEL L. QUEZON III, BENJAMIN MANUEL RIVERA, and RUELO BAYA,
T. TOLOSA, JR., SUSAN V. OPLE, and Intervenors.
CARLOS P. MEDINA, JR., x -------------------------------------------------------- x
Intervenors. PHILIPPINE TRANSPORT AND GENERAL
x------------------------------------------------------ x WORKERS ORGANIZATION (PTGWO)
ATTY. PETE QUIRINO QUADRA, and MR. VICTORINO F. BALAIS,
Intervenor. Intervenors.
x--------------------------------------------------------x x -------------------------------------------------------- x
BAYAN represented by its Chairperson
Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo SENATE OF THE PHILIPPINES, represented
Lesaca, KILUSANG MAYO UNO represented by its President, MANUEL VILLAR, JR.,
by its Secretary General Joel Maglunsod, HEAD Intervenor.
represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS x ------------------------------------------------------- x
FORUM represented by Fr. Dionito Cabillas, SULONG BAYAN MOVEMENT
MIGRANTE represented by its Chairperson FOUNDATION, INC.,
Concepcion Bragas-Regalado, GABRIELA Intervenor.
represented by its Secretary General x ------------------------------------------------------- x
Emerenciana de Jesus, GABRIELA WOMENS JOSE ANSELMO I. CADIZ, BYRON D.
PARTY represented by Sec. Gen. Cristina Palabay, BOCAR, MA. TANYA KARINA A. LAT,
ANAKBAYAN represented by Chairperson ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG,
Eleanor de Guzman, LEAGUE OF FILIPINO Intervenors.
STUDENTS represented by Chair Vencer x -------------------------------------------------------- x
Crisostomo Palabay, JOJO PINEDA of the INTEGRATED BAR OF THE PHILIPPINES,
League of Concerned Professionals and CEBU CITY AND CEBU PROVINCE
Businessmen, DR. DARBY SANTIAGO CHAPTERS,
of the Solidarity of Health Against Charter Intervenors.
Change, DR. REGINALD PAMUGAS of x --------------------------------------------------------x
Health Action for Human Rights, SENATE MINORITY LEADER AQUILINO
Intervenors. Q. PIMENTEL, JR. and SENATORS
x--------------------------------------------------------x SERGIO R. OSMEŇA III, JAMBY
LORETTA ANN P. ROSALES, MADRIGAL, JINGGOY ESTRADA,
MARIO JOYO AGUJA, and ANA THERESA ALFREDO S. LIM and
HONTIVEROS-BARAQUEL, PANFILO LACSON,
Intervenors. Intervenors.

40
x -----------------------------------------------------x The Lambino Groups initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
JOSEPH EJERCITO ESTRADA and Article VI (Legislative Department)[4] and Sections 1-4 of Article VII (Executive Department)[5]
PWERSA NG MASANG PILIPINO, and by adding Article XVIII entitled Transitory Provisions.[6] These proposed changes will shift the
Intervenors. present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The
x -----------------------------------------------------x Lambino Group prayed that after due publication of their petition, the COMELEC should submit
MAR-LEN ABIGAIL BINAY, G.R. No. 174299 the following proposition in a plebiscite for the voters ratification:
SOFRONIO UNTALAN, JR., and
RENE A.V. SAGUISAG, Present: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
Petitioners, CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
PANGANIBAN, C.J., BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
- versus - PUNO, PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
QUISUMBING, ONE SYSTEM TO THE OTHER?
YNARES-SANTIAGO,
COMMISSION ON ELECTIONS, SANDOVAL-GUTIERREZ,
represented by Chairman BENJAMIN CARPIO, On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
S. ABALOS, SR., and Commissioners AUSTRIA-MARTINEZ, modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.[7]
RESURRECCION Z. BORRA, CORONA,
FLORENTINO A. TUASON, JR., CARPIO MORALES,
ROMEO A. BRAWNER, CALLEJO, SR., The Ruling of the COMELEC
RENE V. SARMIENTO, AZCUNA,
NICODEMO T. FERRER, and TINGA, On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
John Doe and Peter Doe, CHICO-NAZARIO, Groups petition for lack of an enabling law governing initiative petitions to amend the Constitution.
Respondents. GARCIA, and VELASCO, JR., JJ. The COMELEC invoked this Courts ruling in Santiago v. Commission on Elections[8] declaring RA
6735 inadequate to implement the initiative clause on proposals to amend the Constitution.[9]

Promulgated: In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the
October 25, 2006 COMELEC to give due course to their initiative petition. The Lambino Group contends that the
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x COMELEC committed grave abuse of discretion in denying due course to their petition since
Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds
only the parties to that case, and their petition deserves cognizance as an expression of the will of
the sovereign people.
DECISION
In G.R. No. 174299, petitioners (Binay Group) pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELECs
CARPIO, J.: verification of signatures and for entertaining the Lambino Groups petition despite the permanent
injunction in Santiago. The Court treated the Binay Groups petition as an opposition-in-
intervention.
The Case
In his Comment to the Lambino Groups petition, the Solicitor General joined causes with the
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General
Elections (COMELEC) denying due course to an initiative petition to amend the 1987 Constitution. proposed that the Court treat RA 6735 and its implementing rules as temporary devises to
implement the system of initiative.

Antecedent Facts Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Groups petition. The supporting intervenors[10] uniformly hold the view that the
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand, the
Aumentado (Lambino Group), with other groups[1] and individuals, commenced gathering opposing intervenors[11] hold the contrary view and maintain that Santiago is a binding precedent.
signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the The opposing intervenors also challenged (1) the Lambino Groups standing to file the petition; (2)
Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative the validity of the signature gathering and verification process; (3) the Lambino Groups
petition under Section 5(b) and (c)[2] and Section 7[3] of Republic Act No. 6735 or the Initiative compliance with the minimum requirement for the percentage of voters supporting an initiative
and Referendum Act (RA 6735). petition under Section 2, Article XVII of the 1987 Constitution;[12] (4) the nature of the proposed
changes as revisions and not mere amendments as provided under Section 2, Article XVII of the
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting 1987 Constitution; and (5) the Lambino Groups compliance with the requirement in Section 10(a)
at least twelve per centum (12%) of all registered voters, with each legislative district represented of RA 6735 limiting initiative petitions to only one subject.
by at least three per centum (3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties memoranda, the Court considered the case submitted for resolution.

41
MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are
asked whether or not they want to propose this constitutional amendment.
The Issues
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
signature.[13] (Emphasis supplied)
The petitions raise the following issues:

1. Whether the Lambino Groups initiative petition complies with Section 2, Article XVII of the Clearly, the framers of the Constitution intended that the draft of the proposed constitutional
Constitution on amendments to the Constitution through a peoples initiative; amendment should be ready and shown to the people before they sign such proposal. The
framers plainly stated that before they sign there is already a draft shown to them. The framers
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 incomplete, also envisioned that the people should sign on the proposal itself because the proponents must
inadequate or wanting in essential terms and conditions to implement the initiative clause on prepare that proposal and pass it around for signature.
proposals to amend the Constitution; and
The essence of amendments directly proposed by the people through initiative upon a petition is
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the that the entire proposal on its face is a petition by the people. This means two essential elements
Lambino Groups petition. must be present. First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must
be embodied in a petition.
The Ruling of the Court
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a petition.
There is no merit to the petition. Thus, an amendment is directly proposed by the people through initiative upon a petition only if
the people sign on a petition that contains the full text of the proposed amendments.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for The full text of the proposed amendments may be either written on the face of the petition, or
conducting a peoples initiative. Thus, there is even no need to revisit Santiago, as the present attached to it. If so attached, the petition must state the fact of such attachment. This is an
petition warrants dismissal based alone on the Lambino Groups glaring failure to comply with the assurance that every one of the several millions of signatories to the petition had seen the full text
basic requirements of the Constitution. For following the Courts ruling in Santiago, no grave abuse of the proposed amendments before signing. Otherwise, it is physically impossible, given the time
of discretion is attributable to the Commision on Elections. constraint, to prove that every one of the millions of signatories had seen the full text of the
proposed amendments before signing.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on The framers of the Constitution directly borrowed[14] the concept of peoples initiative from the
Direct Proposal by the People United States where various State constitutions incorporate an initiative clause. In almost all
States[15] which allow initiative petitions, the unbending requirement is that the people must first
see the full text of the proposed amendments before they sign to signify their assent, and that the
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people must sign on an initiative petition that contains the full text of the proposed
peoples initiative to propose amendments to the Constitution. This section states: amendments.[16]

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through The rationale for this requirement has been repeatedly explained in several decisions of various
initiative upon a petition of at least twelve per centum of the total number of registered voters of courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
which every legislative district must be represented by at least three per centum of the registered affirmed by the First Circuit Court of Appeals, declared:
voters therein. x x x x (Emphasis supplied) [A] signature requirement would be meaningless if the person supplying the signature has not first
seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud. A person permitted to describe
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment orally the contents of an initiative petition to a potential signer, without the signer having actually
directly proposed by the people through initiative upon a petition, thus: examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or
even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a danger seems particularly acute when, in this case, the person giving the description is the drafter
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to
shown to the people when they are asked to sign? qualify for the ballot.[17] (Boldfacing and underscoring supplied)

MR. SUAREZ: That can be reasonably assumed, Madam President. Likewise, in Kerr v. Bradbury,[18] the Court of Appeals of Oregon explained:

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they The purposes of full text provisions that apply to amendments by initiative commonly are
sign. Now, who prepares the draft? described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently evaluate whether to sign the initiative
MR. SUAREZ: The people themselves, Madam President. petition.); x x x (publication of full text of amended constitutional provision required because it is
essential for the elector to have x x x the section which is proposed to be added to or subtracted

42
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
would be required to vote in the dark.) (Emphasis supplied) shall form part of the petition for initiative to amend the Constitution signifies my support for the
filing thereof.

Moreover, an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed and failure to do so is deceptive and misleading which renders the initiative Precinct Number
void.[19]
Name
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth Last Name, First Name, M.I.
the full text of the proposed amendments. However, the deliberations of the framers of our
Constitution clearly show that the framers intended to adopt the relevant American jurisprudence Address
on peoples initiative. In particular, the deliberations of the Constitutional Commission explicitly
reveal that the framers intended that the people must first see the full text of the proposed Birthdate
amendments before they sign, and that the people must sign on a petition containing such full text. MM/DD/YY
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino
Group invokes as valid, requires that the people must sign the petition x x x as signatories. Signature

The proponents of the initiative secure the signatures from the people. The proponents secure the Verification
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed _________________ _________________ __________________
amendments to the people. The proponents present favorably their proposal to the people and do Barangay Official Witness Witness
not present the arguments against their proposal. The proponents, or their supporters, often pay (Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures. The proponents bear the burden of proving that they complied with the There is not a single word, phrase, or sentence of text of the Lambino Groups proposed changes
constitutional requirements in gathering the signatures - that the petition contained, or in the signature sheet. Neither does the signature sheet state that the text of the proposed
incorporated by attachment, the full text of the proposed amendments. changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments
before this Court on 26 September 2006.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that
the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of The signature sheet merely asks a question whether the people approve a shift from the
a signature sheet[20] after the oral arguments of 26 September 2006 when they filed their Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature
Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments sheet does not show to the people the draft of the proposed changes before they are asked to
was the signature sheet attached[21] to the opposition in intervention filed on 7 September 2006 sign the signature sheet. Clearly, the signature sheet is not the petition that the framers of the
by intervenor Atty. Pete Quirino-Quadra. Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the
Constitution.
The signature sheet attached to Atty. Quadras opposition and the signature sheet attached to the
Lambino Groups Memorandum are the same. We reproduce below the signature sheet in full: Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of
Province: the Lambino Groups draft petition which they later filed on 25 August 2006 with the COMELEC.
City/Municipality: When asked if his group also circulated the draft of their amended petition filed on 30 August 2006
No. of with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty.
Verified Lambino changed his answer and stated that what his group circulated was the draft of the 30
Signatures: August 2006 amended petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August
Legislative District: 2006 amended petition almost seven months earlier in February 2006 when they started gathering
signatures. Petitioner Erico B. Aumentados Verification/Certification of the 25 August 2006
Barangay: petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as
follows:
PROPOSITION: DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of signatories
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY hereto. (Emphasis supplied)
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present
petition. However, the Official Website of the Union of Local Authorities of the Philippines[22] has
posted the full text of Resolution No. 2006-02, which provides:

43
Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed
RESOLUTION NO. 2006-02 amendments.

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLES CONSULTATIVE The Lambino Group did not allege that they were amending the petition because the amended
COMMISSION ON CHARTER CHANGE THROUGH PEOPLES INITIATIVE AND REFERENDUM petition was what they had shown to the people during the February to August 2006 signature-
AS A MODE OF AMENDING THE 1987 CONSTITUTION gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 inaccurately
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a stated and failed to correctly reflect their proposed amendments.
common stand on the approach to support the proposals of the Peoples Consultative Commission
on Charter Change; The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President petition with the COMELEC that they circulated printed copies of the draft petition together with
Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for the signature sheets. Likewise, the Lambino Group did not allege in their present petition before
Constitutional Reforms signed by the members of the ULAP and the majority coalition of the this Court that they circulated printed copies of the draft petition together with the signature
House of Representatives in Manila Hotel sometime in October 2005; sheets. The signature sheets do not also contain any indication that the draft petition is attached
WHEREAS, the Peoples Consultative Commission on Charter Change created by Her Excellency to, or circulated with, the signature sheets.
to recommend amendments to the 1987 Constitution has submitted its final report sometime in
December 2005; It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group
WHEREAS, the ULAP is mindful of the current political developments in Congress which militates first claimed that they circulated the petition for initiative filed with the COMELEC, thus:
against the use of the expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress to [T]here is persuasive authority to the effect that (w)here there is not (sic) fraud, a signer who did
amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the not read the measure attached to a referendum petition cannot question his signature on the
constitutional reform agenda through Peoples Initiative and Referendum without prejudice to other ground that he did not understand the nature of the act. [82 C.J.S. S128h. Mo. State v. Sullivan,
pragmatic means to pursue the same; 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER- circulated together with the petition for initiative filed with the COMELEC below, are presumed to
LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT have understood the proposition contained in the petition. (Emphasis supplied)
THE PORPOSALS (SIC) OF THE PEOPLES CONSULATATIVE (SIC) COMMISSION ON
CHARTER CHANGE THROUGH PEOPLES INITIATIVE AND REFERENDUM AS A MODE OF The Lambino Groups statement that they circulated to the people the petition for initiative filed
AMENDING THE 1987 CONSTITUTION; with the COMELEC appears an afterthought, made after the intervenors Integrated Bar of the
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out
the Century Park Hotel, Manila.[23] (Underscoring supplied) that the signature sheets did not contain the text of the proposed changes. In their Consolidated
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August Reply, the Lambino Group alleged that they circulated the petition for initiative but failed to
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral
Resolution No. 2006-02 support(s) the porposals (sic) of the Consulatative (sic) Commission on arguments that what they circulated was the draft of the amended petition of 30 August 2006.
Charter Change through peoples initiative and referendum as a mode of amending the 1987
Constitution. The proposals of the Consultative Commission[24] are vastly different from the The Lambino Group cites as authority Corpus Juris Secundum, stating that a signer who did not
proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 read the measure attached to a referendum petition cannot question his signature on the ground
amended petition filed with the COMELEC. that he did not understand the nature of the act. The Lambino Group quotes an authority that cites
a proposed change attached to the petition signed by the people. Even the authority the Lambino
For example, the proposed revisions of the Consultative Commission affect all provisions of the Group quotes requires that the proposed change must be attached to the petition. The same
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have authority the Lambino Group quotes requires the people to sign on the petition itself.
profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Groups proposed changes do not touch. The Lambino Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
Groups proposed changes purport to affect only Articles VI and VII of the existing Constitution, with, or attached to, the initiative petition signed by the people. In the present initiative, the
including the introduction of new Transitory Provisions. Lambino Groups proposed changes were not incorporated with, or attached to, the signature
sheets. The Lambino Groups citation of Corpus Juris Secundum pulls the rug from under their
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before feet.
the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the
COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
Group caused the circulation of the draft petition, together with the signature sheets, six months August 2006 during the signature-gathering period, the draft of the petition or amended petition
before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave they filed later with the COMELEC. The Lambino Group are less than candid with this Court in
doubt on the Lambino Groups claim that they circulated the draft petition together with the their belated claim that they printed and circulated, together with the signature sheets, the petition
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended
Lambino Groups proposed changes. petition during the signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared: During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies
of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added
After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged that he also asked other supporters to print additional copies of the draft petition but he could not
in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the state with certainty how many additional copies the other supporters printed. Atty. Lambino could

44
only assure this Court of the printing of 100,000 copies because he himself caused the printing of The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended
these 100,000 copies. petition, states:

Likewise, in the Lambino Groups Memorandum filed on 11 October 2006, the Lambino Group Section 5(2). The interim Parliament shall provide for the election of the members of Parliament,
expressly admits that petitioner Lambino initiated the printing and reproduction of 100,000 copies which shall be synchronized and held simultaneously with the election of all local government
of the petition for initiative x x x.[25] This admission binds the Lambino Group and establishes officials. x x x x (Emphasis supplied)
beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to Section 5(2) does not state that the elections for the regular Parliament will be held
the great majority of the people who signed the signature sheets. simultaneously with the 2007 local elections. This section merely requires that the elections for the
regular Parliament shall be held simultaneously with the local elections without specifying the
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty year.
one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty.
Lambino and company attached one copy of the petition to each signature sheet, only 100,000 Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could
signature sheets could have circulated with the petition. Each signature sheet contains space for have easily written the word next before the phrase election of all local government officials. This
ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the would have insured that the elections for the regular Parliament would be held in the next local
attached petition, the maximum number of people who saw the petition before they signed the elections following the ratification of the proposed changes. However, the absence of the word
signature sheets would not exceed 1,000,000. next allows the interim Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature Thus, the members of the interim Parliament will decide the expiration of their own term of office.
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million This allows incumbent members of the House of Representatives to hold office beyond their
signatories the full text of the proposed changes. If ever, not more than one million signatories saw current three-year term of office, and possibly even beyond the five-year term of office of regular
the petition before they signed the signature sheets. members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and
his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
In any event, the Lambino Groups signature sheets do not contain the full text of the proposed deceived the 6.3 million signatories, and even the entire nation.
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral This lucidly shows the absolute need for the people to sign an initiative petition that contains the
arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative,
reading of the signature sheet. This omission is fatal. The failure to so include the text of the the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
proposed changes in the signature sheets renders the initiative void for non-compliance with the because the signature sheets did not contain the full text of the proposed changes. The result is a
constitutional requirement that the amendment must be directly proposed by the people through grand deception on the 6.3 million signatories who were led to believe that the proposed changes
initiative upon a petition. The signature sheet is not the petition envisioned in the initiative clause would require the holding in 2007 of elections for the regular Parliament simultaneously with the
of the Constitution. local elections.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see The Lambino Groups initiative springs another surprise on the people who signed the signature
the full text of the proposed changes before signing. They could not have known the nature and sheets. The proposed changes mandate the interim Parliament to make further amendments or
effect of the proposed changes, among which are: revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;[26] Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament
shall convene to propose amendments to, or revisions of, this Constitution consistent with the
2. The interim Parliament can continue to function indefinitely until its members, who are principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)
almost all the present members of Congress, decide to call for new parliamentary elections. Thus,
the members of the interim Parliament will determine the expiration of their own term of office; [27] During the oral arguments, Atty. Lambino stated that this provision is a surplusage and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
3. Within 45 days from the ratification of the proposed changes, the interim Parliament Lambino Groups initiative.
shall convene to propose further amendments or revisions to the Constitution.[28]
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
These three specific amendments are not stated or even indicated in the Lambino Groups Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling
signature sheets. The people who signed the signature sheets had no idea that they were - when the initiative petition incorporates an unrelated subject matter in the same petition. This
proposing these amendments. These three proposed changes are highly controversial. The puts the people in a dilemma since they can answer only either yes or no to the entire proposition,
people could not have inferred or divined these proposed changes merely from a reading or forcing them to sign a petition that effectively contains two propositions, one of which they may
rereading of the contents of the signature sheets. find unacceptable.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
people during the signature-gathering that the elections for the regular Parliament would be held only the unrelated subject matter. Thus, in Fine v. Firestone,[29] the Supreme Court of Florida
during the 2007 local elections if the proposed changes were ratified before the 2007 local declared:
elections. However, the text of the proposed changes belies this.

45
Combining multiple propositions into one proposal constitutes logrolling, which, if our judicial The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister
responsibility is to mean anything, we cannot permit. The very broadness of the proposed exercises all the powers of the President. If the interim Parliament does not schedule elections for
amendment amounts to logrolling because the electorate cannot know what it is voting on - the the regular Parliament by 30 June 2010, the Prime Minister will come only from the present
amendments proponents simplistic explanation reveals only the tip of the iceberg. x x x x The members of the House of Representatives to the exclusion of the present Senators.
ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness of the proposal makes it The signature sheets do not explain this discrimination against the Senators. The 6.3 million
impossible to state what it will affect and effect and violates the requirement that proposed people who signed the signature sheets could not have known that their signatures would be used
amendments embrace only one subject. (Emphasis supplied) to discriminate against the Senators. They could not have known that their signatures would be
used to limit, after 30 June 2010, the interim Parliaments choice of Prime Minister only to
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,[30] the members of the existing House of Representatives.
Supreme Court of Alaska warned against inadvertence, stealth and fraud in logrolling:
An initiative that gathers signatures from the people without first showing to the people the full text
Whenever a bill becomes law through the initiative process, all of the problems that the single- of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on
subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the people. That is why the Constitution requires that an initiative must be directly proposed by the
the deliberate intermingling of issues to increase the likelihood of an initiatives passage, and there people x x x in a petition - meaning that the people must sign on a petition that contains the full
is a greater opportunity for inadvertence, stealth and fraud in the enactment-by-initiative process. text of the proposed amendments. On so vital an issue as amending the nations fundamental law,
The drafters of an initiative operate independently of any structured or supervised process. They the writing of the text of the proposed amendments cannot be hidden from the people under a
often emphasize particular provisions of their proposition, while remaining silent on other (more general or special power of attorney to unnamed, faceless, and unelected individuals.
complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential petition-signers The Constitution entrusts to the people the power to directly propose amendments to the
and eventual voters. Many voters will never read the full text of the initiative before the election. Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
More importantly, there is no process for amending or splitting the several provisions in an personally know the people who sign the petition. However, this trust emanates from a
initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. fundamental assumption: the full text of the proposed amendment is first shown to the people
(Emphasis supplied) before they sign the petition, not after they have signed the petition.
Thus, the present initiative appears merely a preliminary step for further amendments or revisions
to be undertaken by the interim Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be used to propose an In short, the Lambino Groups initiative is void and unconstitutional because it dismally fails to
amendment mandating the interim Parliament to propose further amendments or revisions to the comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be
Constitution. directly proposed by the people through initiative upon a petition.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through
Parliament to amend or revise again the Constitution within 45 days from ratification of the Initiatives
proposed changes, or before the May 2007 elections. In the absence of the proposed Section
4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. A peoples initiative to change the Constitution applies only to an amendment of the Constitution
With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to and not to its revision. In contrast, Congress or a constitutional convention can propose both
immediately amend or revise again the Constitution. amendments and revisions to the Constitution. Article XVII of the Constitution provides:

However, the signature sheets do not explain the reason for this rush in amending or revising ARTICLE XVII AMENDMENTS OR REVISIONS
again so soon the Constitution. The signature sheets do not also explain what specific
amendments or revisions the initiative proponents want the interim Parliament to make, and why Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
there is a need for such further amendments or revisions. The people are again left in the dark to
fathom the nature and effect of the proposed changes. Certainly, such an initiative is not directly (1) The Congress, upon a vote of three-fourths of all its Members, or
proposed by the people because the people do not even know the nature and effect of the (2) A constitutional convention.
proposed changes.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
There is another intriguing provision inserted in the Lambino Groups amended petition of 30 initiative x x x. (Emphasis supplied)
August 2006. The proposed Section 4(3) of the Transitory Provisions states:
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until mode is through Congress upon three-fourths vote of all its Members. The second mode is
noon of the thirtieth day of June 2010. through a constitutional convention. The third mode is through a peoples initiative.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the Section 1 of Article XVII, referring to the first and second modes, applies to [A]ny amendment to,
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the third mode,
However, there is no counterpart provision for the present members of the House of applies only to [A]mendments to this Constitution. This distinction was intentional as shown by the
Representatives even if their term of office will all end on 30 June 2007, three years earlier than following deliberations of the Constitutional Commission:
that of half of the present Senators. Thus, all the present members of the House will remain
members of the interim Parliament after 30 June 2010. MR. SUAREZ: Thank you, Madam President.

46
May we respectfully call the attention of the Members of the Commission that pursuant to the This has been the consistent ruling of state supreme courts in the United States. Thus, in
mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 McFadden v. Jordan,[32] the Supreme Court of California ruled:
which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote The initiative power reserved by the people by amendment to the Constitution x x x applies only to
Section 2: the proposing and the adopting or rejecting of laws and amendments to the Constitution and does
not purport to extend to a constitutional revision. x x x x It is thus clear that a revision of the
The people may, after five years from the date of the last plebiscite held, directly propose Constitution may be accomplished only through ratification by the people of a revised constitution
amendments to this Constitution thru initiative upon petition of at least ten percent of the proposed by a convention called for that purpose as outlined hereinabove. Consequently if the
registered voters. scope of the proposed initiative measure (hereinafter termed the measure) now before us is so
broad that if such measure became law a substantial revision of our present state Constitution
This completes the blanks appearing in the original Committee Report No. 7. This proposal was would be effected, then the measure may not properly be submitted to the electorate until and
suggested on the theory that this matter of initiative, which came about because of the unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner
extraordinary developments this year, has to be separated from the traditional modes of amending should issue. x x x x (Emphasis supplied)
the Constitution as embodied in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution and should not extend to the revision Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:[33]
of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article
on Amendment or Revision. x x x x It is well established that when a constitution specifies the manner in which it may be amended or
revised, it can be altered by those who favor amendments, revision, or other change only through
xxxx the use of one of the specified means. The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an examination of the measure here
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate in question that it is not an amendment as that term is generally understood and as it is used in
section in the Article on Amendment. Would the sponsor be amenable to accepting an Article IV, Section 1. The document appears to be based in large part on the revision of the
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of constitution drafted by the Commission for Constitutional Revision authorized by the 1961
setting it up as another separate section as if it were a self-executing provision? Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in
the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of hence failed of adoption, x x x.
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the While differing from that document in material respects, the measure sponsored by the plaintiffs is,
Committee. nevertheless, a thorough overhauling of the present constitution x x x.

MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes To call it an amendment is a misnomer.
(a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to
amend, which is given to the public, would only apply to amendments? Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the
people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in
Article XVII, Section 1. x x x x
MS. AQUINO: I thank the sponsor; and thank you, Madam President. Similarly, in this jurisdiction there can be no dispute that a peoples initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments.
xxxx There can be no deviation from the constitutionally prescribed modes of revising the Constitution.
A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 specific modes prescribed in the Constitution itself.
refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments" and "revision"? As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:[34]

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by It is a fundamental principle that a constitution can only be revised or amended in the manner
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other
than the one provided in the instrument is almost invariably treated as extra-constitutional and
MR. MAAMBONG: Thank you.[31] (Emphasis supplied) revolutionary. x x x x While it is universally conceded that the people are sovereign and that they
have power to adopt a constitution and to change their own work at will, they must, in doing so, act
in an orderly manner and according to the settled principles of constitutional law. And where the
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear people, in adopting a constitution, have prescribed the method by which the people may alter or
distinction between amendment and revision of the Constitution. The framers intended, and wrote, amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is
that only Congress or a constitutional convention may propose revisions to the Constitution. The unconstitutional. x x x x (Emphasis supplied)
framers intended, and wrote, that a peoples initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from
the power to propose revisions to the Constitution, the people cannot propose revisions even as its solemn oath and duty to insure compliance with the clear command of the Constitution ― that a
they are empowered to propose amendments. peoples initiative may only amend, never revise, the Constitution.

47
The question is, does the Lambino Groups initiative constitute an amendment or revision of the chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of
Constitution? If the Lambino Groups initiative constitutes a revision, then the present petition the Lambino Groups proposed changes, it is readily apparent that the changes will radically alter
should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a
leading member of the Constitutional Commission, writes:
Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the fundamental An amendment envisages an alteration of one or a few specific and separable provisions. The
difference in this manner: guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
[T]he very term constitution implies an instrument of a permanent and abiding nature, and the obsolete or that are judged to be dangerous. In revision, however, the guiding original intention
provisions contained therein for its revision indicate the will of the people that the underlying and plan contemplates a re-examination of the entire document, or of provisions of the document
principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like which have over-all implications for the entire document, to determine how and to what extent they
permanent and abiding nature. On the other hand, the significance of the term amendment implies should be altered. Thus, for instance a switch from the presidential system to a parliamentary
such an addition or change within the lines of the original instrument as will effect an improvement, system would be a revision because of its over-all impact on the entire constitutional structure. So
or better carry out the purpose for which it was framed.[35] (Emphasis supplied) would a switch from a bicameral system to a unicameral system be because of its effect on other
important provisions of the Constitution.[41] (Emphasis supplied)
In Adams v. Gunter,[42] an initiative petition proposed the amendment of the Florida State
Revision broadly implies a change that alters a basic principle in the constitution, like altering the constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the
principle of separation of powers or the system of checks-and-balances. There is also revision if initiative was defective and unauthorized where [the] proposed amendment would x x x affect
the change alters the substantial entirety of the constitution, as when the change affects several other provisions of [the] Constitution. The Supreme Court of Florida, striking down the
substantial provisions of the constitution. On the other hand, amendment broadly refers to a initiative as outside the scope of the initiative clause, ruled as follows:
change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only the The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
specific provision being amended. Unicameral Legislature affects not only many other provisions of the Constitution but provides for
a change in the form of the legislative branch of government, which has been in existence in the
In California where the initiative clause allows amendments but not revisions to the constitution United States Congress and in all of the states of the nation, except one, since the earliest days. It
just like in our Constitution, courts have developed a two-part test: the quantitative test and the would be difficult to visualize a more revolutionary change. The concept of a House and a Senate
qualitative test. The quantitative test asks whether the proposed change is so extensive in its is basic in the American form of government. It would not only radically change the whole pattern
provisions as to change directly the substantial entirety of the constitution by the deletion or of government in this state and tear apart the whole fabric of the Constitution, but would even
alteration of numerous existing provisions.[36] The court examines only the number of provisions affect the physical facilities necessary to carry on government.
affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution. xxxx
The main inquiry is whether the change will accomplish such far reaching changes in the nature of We conclude with the observation that if such proposed amendment were adopted by the people
our basic governmental plan as to amount to a revision.[37] Whether there is an alteration in the at the General Election and if the Legislature at its next session should fail to submit further
structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic amendments to revise and clarify the numerous inconsistencies and conflicts which would result,
governmental plan includes change in its fundamental framework or the fundamental powers of its or if after submission of appropriate amendments the people should refuse to adopt them, simple
Branches.[38] A change in the nature of the basic governmental plan also includes changes that chaos would prevail in the government of this State. The same result would obtain from an
jeopardize the traditional form of government and the system of check and balances.[39] amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These examples point
Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision and unerringly to the answer.
not merely an amendment. Quantitatively, the Lambino Groups proposed changes overhaul two
articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 The purpose of the long and arduous work of the hundreds of men and women and many
provisions in the entire Constitution.[40] Qualitatively, the proposed changes alter substantially the sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate
basic plan of government, from presidential to parliamentary, and from a bicameral to a inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-
unicameral legislature. date document. All of this could disappear very quickly if we were to hold that it could be amended
in the manner proposed in the initiative petition here.[43] (Emphasis supplied)
A change in the structure of government is a revision of the Constitution, as when the three great
co-equal branches of government in the present Constitution are reduced into two. This alters the The rationale of the Adams decision applies with greater force to the present petition. The
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to Lambino Groups initiative not only seeks a shift from a bicameral to a unicameral legislature, it
a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and also seeks to merge the executive and legislative departments. The initiative in Adams did not
executive branches is a radical change in the structure of government. even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
The abolition alone of the Office of the President as the locus of Executive Power alters the would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Groups
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition present initiative, no less than 105 provisions of the Constitution would be affected based on the
alone of one chamber of Congress alters the system of checks-and-balances within the legislature count of Associate Justice Romeo J. Callejo, Sr.[44] There is no doubt that the Lambino Groups
and constitutes a revision of the Constitution. present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office of the President and the abolition of one

48
The Lambino Group theorizes that the difference between amendment and revision is only one of trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot
procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and without the prior approval of the legislature.
proposes changes to the Constitution, substantive changes are called revisions because members
of the deliberative body work full-time on the changes. However, the same substantive changes, We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
when proposed through an initiative, are called amendments because the changes are made by instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of
ordinary people who do not make an occupation, profession, or vocation out of such endeavor. the constitution may not be accomplished by initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said:
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a
99. With this distinction in mind, we note that the constitutional provisions expressly provide for means of amending the Oregon Constitution, but it contains no similar sanction for its use as a
both amendment and revision when it speaks of legislators and constitutional delegates, while the means of revising the constitution. x x x x
same provisions expressly provide only for amendment when it speaks of the people. It would
seem that the apparent distinction is based on the actual experience of the people, that on one It then reviewed Article XVII, section 2, relating to revisions, and said: It is the only section of the
hand the common people in general are not expected to work full-time on the matter of correcting constitution which provides the means for constitutional revision and it excludes the idea that an
the constitution because that is not their occupation, profession or vocation; while on the other individual, through the initiative, may place such a measure before the electorate. x x x x
hand, the legislators and constitutional convention delegates are expected to work full-time on the
same matter because that is their occupation, profession or vocation. Thus, the difference Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
between the words revision and amendment pertain only to the process or procedure of coming constitutional revisions proposed by initiative. (Emphasis supplied)
up with the corrections, for purposes of interpreting the constitutional provisions.
Similarly, this Court must reject the Lambino Groups theory which negates the express intent of
100. Stated otherwise, the difference between amendment and revision cannot reasonably be in the framers and the plain language of the Constitution.
the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied)
We can visualize amendments and revisions as a spectrum, at one end green for amendments
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and
same proposed changes that the Lambino Group wrote in the present initiative, the changes difficulties arise in determining whether there is an amendment or revision. The present initiative is
would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the indisputably located at the far end of the red spectrum where revision begins. The present
proposed changes in the present initiative constitute a revision if Congress or a constitutional initiative seeks a radical overhaul of the existing separation of powers among the three co-equal
convention had drafted the changes. However, since the Lambino Group as private individuals departments of government, requiring far-reaching amendments in several sections and articles of
drafted the proposed changes, the changes are merely amendments to the Constitution. The the Constitution.
Lambino Group trivializes the serious matter of changing the fundamental law of the land.
Where the proposed change applies only to a specific provision of the Constitution without
The express intent of the framers and the plain language of the Constitution contradict the affecting any other section or article, the change may generally be considered an amendment and
Lambino Groups theory. Where the intent of the framers and the language of the Constitution are not a revision. For example, a change reducing the voting age from 18 years to 15 years[47] is an
clear and plainly stated, courts do not deviate from such categorical intent and language.[45] Any amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
theory espousing a construction contrary to such intent and language deserves scant companies from 100 percent to 60 percent is an amendment and not a revision.[48] Also, a
consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of change requiring a college degree as an additional qualification for election to the Presidency is an
government established in the Constitution. Such a theory, devoid of any jurisprudential mooring amendment and not a revision.[49]
and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino
Groups position. Any theory advocating that a proposed change involving a radical structural The changes in these examples do not entail any modification of sections or articles of the
change in government does not constitute a revision justly deserves rejection. Constitution other than the specific provision being amended. These changes do not also affect
the structure of government or the system of checks-and-balances among or within the three
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions branches. These three examples are located at the far green end of the spectrum, opposite the far
have attempted to advance without any success. In Lowe v. Keisling,[46] the Supreme Court of red end where the revision sought by the present petition is located.
Oregon rejected this theory, thus: However, there can be no fixed rule on whether a change is an amendment or a revision. A
change in a single word of one sentence of the Constitution may be a revision and not an
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed amendment. For example, the substitution of the word republican with monarchic or theocratic in
by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the Section 1, Article II[50] of the Constitution radically overhauls the entire structure of government
legislature can propose a revision of the constitution, but it does not affect proposed revisions and the fundamental ideological basis of the Constitution. Thus, each specific change will have to
initiated by the people. be examined case-by-case, depending on how it affects other provisions, as well as how it affects
the structure of government, the carefully crafted system of checks-and-balances, and the
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the underlying ideological basis of the existing Constitution.
constitution that cannot be enacted through the initiative process. They assert that the distinction Since a revision of a constitution affects basic principles, or several provisions of a constitution, a
between amendment and revision is determined by reviewing the scope and subject matter of the deliberative body with recorded proceedings is best suited to undertake a revision. A revision
proposed enactment, and that revisions are not limited to a formal overhauling of the constitution. requires harmonizing not only several provisions, but also the altered principles with those that
They argue that this ballot measure proposes far reaching changes outside the lines of the original remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent
instrument, including profound impacts on existing fundamental rights and radical restructuring of assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
the government's relationship with a defined group of citizens. Plaintiffs assert that, because the allow peoples initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proposed ballot measure will refashion the most basic principles of Oregon constitutional law, the proceedings, to undertake only amendments and not revisions.

49
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
In the present initiative, the Lambino Groups proposed Section 2 of the Transitory Provisions initiative clause on amendments to the Constitution.
states:
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case
Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the before the Court can be resolved on some other grounds. Such avoidance is a logical
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a
be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are statute if the case can be resolved on some other grounds.[51]
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be amended Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied) initiatives to amend the Constitution, this will not change the result here because the present
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present
law, the later law prevails. This rule also applies to construction of constitutions. However, the initiative must first comply with Section 2, Article XVII of the Constitution even before complying
Lambino Groups draft of Section 2 of the Transitory Provisions turns on its head this rule of with RA 6735.
construction by stating that in case of such irreconcilable inconsistency, the earlier provision shall
be amended to conform with a unicameral parliamentary form of government. The effect is to Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the petition
freeze the two irreconcilable provisions until the earlier one shall be amended, which requires a for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
future separate constitutional amendment. number of registered voters as signatories. Section 5(b) of RA 6735 requires that the people must
sign the petition x x x as signatories.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a surplusage. The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of
In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
provision automatically prevails in case of irreconcilable inconsistency. However, it is not as Atty. Alberto C. Agra signed the petition and amended petition as counsels for Raul L. Lambino
simple as that. and Erico B. Aumentado, Petitioners. In the COMELEC, the Lambino Group, claiming to act
together with the 6.3 million signatories, merely attached the signature sheets to the petition and
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
Parliamentary system of government, and the inconsistency shall be resolved in favor of a The Lambino Groups logrolling initiative also violates Section 10(a) of RA 6735 stating, No petition
unicameral parliamentary form of government. embracing more than one (1) subject shall be submitted to the electorate; x x x. The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
Now, what unicameral parliamentary form of government do the Lambino Groups proposed amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are form of government. Since the present initiative embraces more than one subject matter, RA 6735
among the few countries with unicameral parliaments? The proposed changes could not possibly prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
refer to the traditional and well-known parliamentary forms of government ― the British, French, Lambino Groups initiative will still fail.
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral
parliaments. Did the people who signed the signature sheets realize that they were adopting the 4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? Groups Initiative

This drives home the point that the peoples initiative is not meant for revisions of the Constitution
but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral- In dismissing the Lambino Groups initiative petition, the COMELEC en banc merely followed this
Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Courts ruling in Santiago and Peoples Initiative for Reform, Modernization and Action (PIRMA) v.
Revision of the Constitution through a peoples initiative will only result in gross absurdities in the COMELEC.[52] For following this Courts ruling, no grave abuse of discretion is attributable to the
Constitution. COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this
Court should reiterate its unanimous ruling in PIRMA:
In sum, there is no doubt whatsoever that the Lambino Groups initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed
Article XVII of the Constitution limiting the scope of a peoples initiative to [A]mendments to this to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing
Constitution. that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325,
promulgated on March 19, 1997, and its Resolution of June 10, 1997.
3. A Revisit of Santiago v. COMELEC is Not Necessary
5. Conclusion
The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a peoples initiative to amend the The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience
Constitution. There is no need to revisit this Courts ruling in Santiago declaring RA 6735 of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or
incomplete, inadequate or wanting in essential terms and conditions to cover the system of revising it in blatant violation of the clearly specified modes of amendment and revision laid down
initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the in the Constitution itself.
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively

50
To allow such change in the fundamental law is to set adrift the Constitution in unchartered Associate Justice
waters, to be tossed and turned by every dominant political group of the day. If this Court allows MA. ALICIA AUSTRIA-MARTINEZ
today a cavalier change in the Constitution outside the constitutionally prescribed modes, Associate Justice
tomorrow the new dominant political group that comes will demand its own set of changes in the RENATO C. CORONA
same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for Associate Justice
the rule of law in this country.
CONCHITA CARPIO MORALES
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes cast[53] Associate Justice
− approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the peoples sovereign will. That approval ROMEO J. CALLEJO, SR.
included the prescribed modes for amending or revising the Constitution. Associate Justice

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino ADOLFO S. AZCUNA
Group, can change our Constitution contrary to the specific modes that the people, in their Associate Justice
sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-
constitutional change, which means subverting the peoples sovereign will and discarding the DANTE O. TINGA
Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Associate Justice
Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution,
which embodies the real sovereign will of the people. MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice
Incantations of peoples voice, peoples sovereign will, or let the people decide cannot override the
specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the PRESBITERO J. VELASCO, JR.
Constitution ― the peoples fundamental covenant that provides enduring stability to our society ― Associate Justice
becomes easily susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the nations stability.
CERTIFICATION
The Lambino Group claims that their initiative is the peoples voice. However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
COMELEC, that ULAP maintains its unqualified support to the agenda of Her Excellency Decision were reached in consultation before the case was assigned to the writer of the opinion of
President Gloria Macapagal-Arroyo for constitutional reforms. The Lambino Group thus admits the Court.
that their peoples initiative is an unqualified support to the agenda of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of peoples voice or ARTEMIO V. PANGANIBAN
sovereign will in the present initiative. Chief Justice

This Court cannot betray its primordial duty to defend and protect the Constitution. The [1] Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
Constitution, which embodies the peoples sovereign will, is the bible of this Court. This Court [2] This provision states: Requirements. x x x x
exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%)
propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow of the total number of registered voters as signatories, of which every legislative district must be
a desecration of the Constitution. To allow such alteration and desecration is to lose this Courts represented by at least three per centum (3%) of the registered voters therein. Initiative on the
raison d'etre. Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
WHEREFORE, we DISMISS the petition in G.R. No. 174153. (c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or
SO ORDERED. repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
ANTONIO T. CARPIO c.4. that it is not one of the exceptions provided herein;
Associate Justice c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly
WE CONCUR: written or printed at the top of every page of the petition.
[3] This provision states: Verification of Signatures. The Election Registrar shall verify the
ARTEMIO V. PANGANIBANChief Justice signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards
REYNATO S. PUNOAssociate Justice used in the immediately preceding election.
LEONARDO A. QUISUMBING [4] Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:
Associate Justice Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament
CONSUELO YNARES-SANTIAGO which shall be composed of as many members as may be provided by law, to be apportioned
Associate Justice among the provinces, representative districts, and cities in accordance with the number of their
ANGELINA SANDOVAL-GUTIERREZ respective inhabitants, with at least three hundred thousand inhabitants per district, and on the

51
basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among
contiguous, compact and adjacent territory, and each province must have at least one member. the members of the interim Parliament, an interim Prime Minister, who shall be elected by a
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty- majority vote of the members thereof. The interim Prime Minister shall oversee the various
five years old on the day of the election, a resident of his district for at least one year prior thereto, ministries and shall perform such powers and responsibilities as may be delegated to him by the
and shall be elected by the qualified voters of his district for a term of five years without limitation incumbent President.
as to the number thereof, except those under the party-list system which shall be provided for by (2) The interim Parliament shall provide for the election of the members of Parliament, which shall
law and whose number shall be equal to twenty per centum of the total membership coming from be synchronized and held simultaneously with the election of all local government officials.
the parliamentary districts. Thereafter, the Vice President, as Member of Parliament, shall immediately convene the
[5] Sections 1, 2, 3, and 4 of Article VII will be changed thus: Parliament and shall initially preside over its session for the purpose of electing the Prime Minister,
Section 1. There shall be a President who shall be the Head of State. The executive power shall who shall be elected by a majority vote of all its members, from among themselves. The duly
be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected Prime Minister shall continue to exercise and perform the powers, duties and
elected by a majority of all the Members of Parliament from among themselves. He shall be responsibilities of the interim Prime Minister until the expiration of the term of incumbent President
responsible to the Parliament for the program of government. and Vice President.
[6] Sections 1-5 of the Transitory Provisions read: [7] As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their paragraph 2, Section 5, thus:
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under Section 4. x x x x
the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
parliament. thirtieth day of June 2010.
(2) In case of death, permanent disability, resignation or removal from office of the incumbent xxxx
President, the incumbent Vice President shall succeed as President. In case of death, permanent Section 5. x x x x
disability, resignation or removal from office of both the incumbent President and Vice President, (2) The interim Parliament shall provide for the election of the members of Parliament, which shall
the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under be synchronized and held simultaneously with the election of all local government officials. The
Article VII as amended. duly elected Prime Minister shall continue to exercise and perform the powers, duties and
Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the responsibilities of the interim Prime Minister until the expiration of the term of the incumbent
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby President and Vice President.
be amended and Sections 18 and 24 which shall be deleted, all other sections of Article VI are [8] 336 Phil. 848 (1997); Resolution dated 10 June 1997.
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are [9] The COMELEC held:
inconsistent with the Parliamentary system of government, in which case, they shall be amended We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce
to conform with a unicameral parliamentary form of government; provided, however, that any and and administer all laws and regulations relative to the conduct of, as in this case, initiative.
all references therein to Congress, Senate, House of Representatives and Houses of Congress
shall be changed to read Parliament; that any and all references therein to Member[s] of This mandate, however, should be read in relation to the other provisions of the Constitution
Congress, Senator[s] or Member[s] of the House of Representatives shall be changed to read as particularly on initiative.
Member[s] of Parliament and any and all references to the President and or Acting President shall
be changed to read Prime Minister. Section 2, Article XVII of the 1987 Constitution provides:
Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of initiative, upon a petition of at least twelve per centum of the total number of registered voters, of
Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, which every legislative district must be represented by at least three per centum of the registered
unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed voters therein. x x x.
amended so as to conform to a unicameral Parliamentary System of government; provided The Congress shall provide for the implementation of the exercise of this right.
however that any and all references therein to Congress, Senate, House of Representatives and
Houses of Congress shall be changed to read Parliament; that any and all references therein to The afore-quoted provision of the Constitution being a non self-executory provision needed an
Member[s] of Congress, Senator[s] or Member[s] of the House of Representatives shall be enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the
changed to read as Member[s] of Parliament and any and all references to the President and or people under a system of initiative to directly propose, enact, approve or reject, in whole or in part,
Acting President shall be changed to read Prime Minister. the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act No. 6735.
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament
which shall continue until the Members of the regular Parliament shall have been elected and shall However, the Supreme Court, in the landmark case of Santiago vs. Commission on Elections
have qualified. It shall be composed of the incumbent Members of the Senate and the House of struck down the said law for being incomplete, inadequate, or wanting in essential terms and
Representatives and the incumbent Members of the Cabinet who are heads of executive conditions insofar as initiative on amendments to the Constitution is concerned.
departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the The Supreme Court likewise declared that this Commission should be permanently enjoined from
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
shall initially convene the interim Parliament and shall preside over its sessions for the election of until a sufficient law shall have been validly enacted to provide for the implementation of the
the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all system.
the members of the interim Parliament from among themselves.
(3) Within forty-five days from ratification of these amendments, the interim Parliament shall Thus, even if the signatures in the instant Petition appear to meet the required minimum per
convene to propose amendments to, or revisions of, this Constitution consistent with the principles centum of the total number of registered voters, of which every legislative district is represented by
of local autonomy, decentralization and a strong bureaucracy. at least three per centum of the registered voters therein, still the Petition cannot be given due

52
course since the Supreme Court categorically declared R.A. No. 6735 as inadequate to cover the Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State
system of initiative on amendments to the Constitution. ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
[17] 407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v.
This Commission is not unmindful of the transcendental importance of the right of the people Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly,
under a system of initiative. However, neither can we turn a blind eye to the pronouncement of the 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14
High Court that in the absence of a valid enabling law, this right of the people remains nothing but (2001).
an empty right, and that this Commission is permanently enjoined from entertaining or taking [18] 89 P.3d 1227, 1235 (2004).
cognizance of any petition for initiative on amendments to the Constitution. [19] Stumpf v. Law, 839 P. 2d 120, 124 (1992).
[20] Exhibit B of the Lambino Groups Memorandum filed on 11 October 2006.
Considering the foregoing, We are therefore constrained not to entertain or give due course to the [21] Annex B of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7
instant Petition. September 2006.
[10] Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine [22] www.ulap.gov.ph.
Transport and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; [23] www.ulap.gov.ph/reso2006-02.html.
Sulong Bayan Movement Foundation, Inc. [24] The full text of the proposals of the Consultative Commission on Charter Change can be
[11] Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. downloaded at its official website at www.concom.ph.
Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete [25] The Lambino Groups Memorandum, p. 5.
Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, [26] Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall
Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo be elected for a term of five years without limitation as to the number thereof.
Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo [27] Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the
Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution interim Parliament shall continue until the Members of the regular Parliament shall have been
Association (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. elected and shall have qualified. Also, under the proposed Section 5(2), Article XVIII, of the same
Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Transitory Provisions, the interim Parliament shall provide for the election of the members of
Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador Parliament.
and Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu Province [28] Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the
Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmeňa III, interim Parliament, within 45 days from ratification of the proposed changes, shall convene to
Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and propose amendments to, or revisions of, this Constitution.
Pwersa ng Masang Pilipino. [29] 448 So.2d 984, 994 (1984), internal citations omitted.
[12] This provision states: Amendments to this Constitution may likewise be directly proposed by [30] 698 P.2d 1173, 1184 (1985).
the people through initiative upon a petition of at least twelve per centum of the total number of [31] I RECORD 386, 392, 402-403.
registered voters, of which every legislative district must be represented by at least three per [32] 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).
centum of the registered voters therein. No amendment under this section shall be authorized [33] 392 P.2d 636, 638 (1964).
within five years following the ratification of this Constitution nor oftener than once every five [34] 930 P.2d 186, 196 (1996), internal citations omitted.
years. [35] Livermore v. Waite, 102 Cal. 113, 118-119 (1894).
[13] I RECORD, 387-388. [36] Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281,
[14] During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento 1286 (1978).
made the following report (I RECORD 389): [37] Id.
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and [38] Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).
Transitory Provisions decided to retain the system of initiative as a mode of amending the [39] California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).
Constitution. I made a survey of American constitutions and I discovered that 13 States provide for [40] See note 44, infra.
a system of initiative as a mode of amending the Constitution Arizona, Arkansas, California, [41] Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.
Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma 1294 (2003).
and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South [42] 238 So.2d 824 (1970).
Dakota. So, I am happy that this was accepted or retained by the Committee. [43] Id. at 830-832.
xxxx [44] As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral
The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when arguments.
South Dakota adopted the initiative in its constitution. The Swiss cantons experimented with [45] Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA
initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek
national constitution. Initiatives promote direct democracy by allowing the people to directly Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
propose amendments to the constitution. In contrast, the traditional mode of changing the [46] 882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment
constitution is known as indirect democracy because the amendments are referred to the voters in question was not a revision.
by the legislature or the constitutional convention. [47] Section 1, Article V of the Constitution.
[15] Florida requires only that the title and summary of the proposed amendment are printed in [48] Section 11(1), Article XVI of the Constitution.
clear and unambiguous language. Advisory Opinion to the Attorney General RE Right of Citizens [49] Section 2, Article VII of the Constitution.
to Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida. [50] This section provides: The Philippines is a democratic and republican State. Sovereignty
[16] State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 resides in the people and all government authority emanates from them.
Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. [51] Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273
2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike (1999).
[52] G.R. No. 129754, Resolution dated 23 September 1997.

53
[53] Presidential Proclamation No. 58 dated February 11, 1987, entitled Proclaiming the localized projects and secured solely or primarily to bring money to a representative's district.7
Ratification of the Constitution of the Republic of the Philippines Adopted by the Constitutional Some scholars on the subject further use it to refer to legislative control of local appropriations.8
Commission of 1986, including the Ordinance Appended thereto. In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds
of Members of the Legislature,9 although, as will be later discussed, its usage would evolve in
reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
5. Republic of the Philippines A. Pre-Martial Law Era (1922-1972).
SUPREME COURT Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
Manila "Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
EN BANC therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works projects13 "shall
G.R. No. 208566 November 19, 2013 be distributed x x x subject to the approval of a joint committee elected by the Senate and the
House of Representatives. "The committee from each House may also authorize one of its
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides that the said
GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
secretary, "with the approval of said joint committee, or of the authorized members thereof, may,
vs. for the purposes of said distribution, transfer unexpended portions of any item of appropriation
under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened from
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. the areas of fund release and realignment to the area of project identification. During that year, the
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL mechanics of the public works act was modified to the extent that the discretion of choosing
TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by projects was transferred from the Secretary of Commerce and Communications to legislators. "For
FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF the first time, the law carried a list of projects selected by Members of Congress, they ‘being the
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as representatives of the people, either on their own account or by consultation with local officials or
SPEAKER OF THE HOUSE, Respondents. civil leaders.‘"16 During this period, the pork barrel process commenced with local government
x-----------------------x councils, civil groups, and individuals appealing to Congressmen or Senators for projects.
G.R. No. 208493 Petitions that were accommodated formed part of a legislator‘s allocation, and the amount each
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner, legislator would eventually get is determined in a caucus convened by the majority. The amount
vs. was then integrated into the administration bill prepared by the Department of Public Works and
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and Communications. Thereafter, the Senate and the House of Representatives added their own
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF provisions to the bill until it was signed into law by the President – the Public Works Act.17 In the
REPRESENTATIVES, Respondents. 1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate between the
x-----------------------x House of Representatives and the Senate.18
G.R. No. 209251 B. Martial Law Era (1972-1986).
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after Martial
Member -Province of Marinduque, Petitioner, Law was declared, an era when "one man controlled the legislature,"19 the reprieve was only
vs. temporary. By 1982, the Batasang Pambansa had already introduced a new item in the General
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, Appropriations Act (GAA) called the" Support for Local Development Projects" (SLDP) under the
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents. article on "National Aid to Local Government Units". Based on reports,20 it was under the SLDP
DECISION that the practice of giving lump-sum allocations to individual legislators began, with each
PERLAS-BERNABE, J.: assemblyman receiving ₱500,000.00. Thereafter, assemblymen would communicate their project
"Experience is the oracle of truth."1 preferences to the Ministry of Budget and Management for approval. Then, the said ministry would
-James Madison release the allocation papers to the Ministry of Local Governments, which would, in turn, issue the
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of checks to the city or municipal treasurers in the assemblyman‘s locality. It has been further
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject reported that "Congressional Pork Barrel" projects under the SLDP also began to cover not only
matter, the Court shall heretofore discuss the system‘s conceptual underpinnings before detailing public works projects, or so- called "hard projects", but also "soft projects",21 or non-public works
the particulars of the constitutional challenge. projects such as those which would fall under the categories of, among others, education, health
The Facts and livelihood.22
I. Pork Barrel: General Concept. C. Post-Martial Law Era:
"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be Corazon Cojuangco Aquino Administration (1986-1992).
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
who would cast their famished bodies into the porcine feast to assuage their hunger with morsels "Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and the
coming from the generosity of their well-fed master.4 This practice was later compared to the "Visayas Development Fund" which were created with lump-sum appropriations of ₱480 Million
actions of American legislators in trying to direct federal budgets in favor of their districts.5 While and ₱240 Million, respectively, for the funding of development projects in the Mindanao and
the advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to Visayas areas in 1989. It has been documented23 that the clamor raised by the Senators and the
political bills that "bring home the bacon" to a legislator‘s district and constituents.6 In a more Luzon legislators for a similar funding, prompted the creation of the "Countrywide Development
technical sense, "Pork Barrel" refers to an appropriation of government spending meant for Fund" (CDF) which was integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to
cover "small local infrastructure and other priority community projects."

54
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the The 200249 PDAF Article was brief and straightforward as it merely contained a single special
President, to be released directly to the implementing agencies but "subject to the submission of provision ordering the release of the funds directly to the implementing agency or local
the required list of projects and activities."Although the GAAs from 1990 to 1992 were silent as to government unit concerned, without further qualifications. The following year, 2003,50 the same
the amounts of allocations of the individual legislators, as well as their participation in the single provision was present, with simply an expansion of purpose and express authority to
identification of projects, it has been reported26 that by 1992, Representatives were receiving realign. Nevertheless, the provisions in the 2003 budgets of the Department of Public Works and
₱12.5 Million each in CDF funds, while Senators were receiving ₱18 Million each, without any Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress on
limitation or qualification, and that they could identify any kind of project, from hard or the aspects of implementation delegation and project list submission, respectively. In 2004, the
infrastructure projects such as roads, bridges, and buildings to "soft projects" such as textbooks, 2003 GAA was re-enacted.53
medicines, and scholarships.27 In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998). projects under the ten point agenda of the national government and shall be released directly to
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be the implementing agencies." It also introduced the program menu concept,55 which is essentially
made upon the submission of the list of projects and activities identified by, among others, a list of general programs and implementing agencies from which a particular PDAF project may
individual legislators. For the first time, the 1993 CDF Article included an allocation for the Vice- be subsequently chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006
President.29 As such, Representatives were allocated ₱12.5 Million each in CDF funds, Senators, and hence, operated on the same bases. In similar regard, the program menu concept was
₱18 Million each, and the Vice-President, ₱20 Million. consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts
and fund release as found in the 1993 CDF Article. In addition, however, the Department of allocated for the individual legislators, as well as their participation in the proposal and
Budget and Management (DBM) was directed to submit reports to the Senate Committee on identification of PDAF projects to be funded. In contrast to the PDAF Articles, however, the
Finance and the House Committee on Appropriations on the releases made from the funds.33 provisions under the DepEd School Building Program and the DPWH budget, similar to its
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with predecessors, explicitly required prior consultation with the concerned Member of Congress61
the implementing agency concerned, were directed to submit to the DBM the list of 50% of anent certain aspects of project implementation.
projects to be funded from their respective CDF allocations which shall be duly endorsed by (a) Significantly, it was during this era that provisions which allowed formal participation of non-
the Senate President and the Chairman of the Committee on Finance, in the case of the Senate, governmental organizations (NGO) in the implementation of government projects were introduced.
and (b) the Speaker of the House of Representatives and the Chairman of the Committee on In the Supplemental Budget for 2006, with respect to the appropriation for school buildings, NGOs
Appropriations, in the case of the House of Representatives; while the list for the remaining 50% were, by law, encouraged to participate. For such purpose, the law stated that "the amount of at
was to be submitted within six (6) months thereafter. The same article also stated that the project least ₱250 Million of the ₱500 Million allotted for the construction and completion of school
list, which would be published by the DBM,35 "shall be the basis for the release of funds" and that buildings shall be made available to NGOs including the Federation of Filipino-Chinese Chambers
"no funds appropriated herein shall be disbursed for projects not included in the list herein of Commerce and Industry, Inc. for its "Operation Barrio School" program, with capability and
required." proven track records in the construction of public school buildings x x x."62 The same allocation
The following year, or in 1998,36 the foregoing provisions regarding the required lists and was made available to NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it was
endorsements were reproduced, except that the publication of the project list was no longer in 2007 that the Government Procurement Policy Board64 (GPPB) issued Resolution No. 12-2007
required as the list itself sufficed for the release of CDF Funds. dated June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other forms regulations65 of RA 9184,66 the Government Procurement Reform Act, to include, as a form of
of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA (called negotiated procurement,67 the procedure whereby the Procuring Entity68 (the implementing
"Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s political agenda.37 agency) may enter into a memorandum of agreement with an NGO, provided that "an
It has been articulated that since CIs "formed part and parcel of the budgets of executive appropriation law or ordinance earmarks an amount to be specifically contracted out to NGOs."69
departments, they were not easily identifiable and were thus harder to monitor." Nonetheless, the G. Present Administration (2010-Present).
lawmakers themselves as well as the finance and budget officials of the implementing agencies, Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article
as well as the DBM, purportedly knew about the insertions.38 Examples of these CIs are the included an express statement on lump-sum amounts allocated for individual legislators and the
Department of Education (DepEd) School Building Fund, the Congressional Initiative Allocations, Vice-President: Representatives were given ₱70 Million each, broken down into ₱40 Million for
the Public Works Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The allocations for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was given to each Senator as
the School Building Fund, particularly, ―shall be made upon prior consultation with the well as the Vice-President, with a ₱100 Million allocation each for "hard" and "soft projects."
representative of the legislative district concerned.”40 Similarly, the legislators had the power to Likewise, a provision on realignment of funds was included, but with the qualification that it may be
direct how, where and when these appropriations were to be spent.41 allowed only once. The same provision also allowed the Secretaries of Education, Health, Social
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001). Welfare and Development, Interior and Local Government, Environment and Natural Resources,
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, Energy, and Public Works and Highways to realign PDAF Funds, with the further conditions that:
namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44 (a) realignment is within the same implementing unit and same project category as the original
and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which contained a project, for infrastructure projects; (b) allotment released has not yet been obligated for the original
special provision requiring "prior consultation" with the Member s of Congress for the release of scope of work, and (c) the request for realignment is with the concurrence of the legislator
the funds. concerned.71
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
the GAA. The requirement of "prior consultation with the respective Representative of the District" designation of beneficiaries shall conform to the priority list, standard or design prepared by each
before PDAF funds were directly released to the implementing agency concerned was explicitly implementing agency (priority list requirement) x x x." However, as practiced, it would still be the
stated in the 2000 PDAF Article. Moreover, realignment of funds to any expense category was individual legislator who would choose and identify the project from the said priority list.74
expressly allowed, with the sole condition that no amount shall be used to fund personal services Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and
and other personnel benefits.47 The succeeding PDAF provisions remained the same in view of 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at ₱200 Million in
the re-enactment48 of the 2000 GAA for the year 2001. the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now allowed LGUs to be
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010). identified as implementing agencies if they have the technical capability to implement the

55
projects.77 Legislators were also allowed to identify programs/projects, except for assistance to (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt
indigent patients and scholarships, outside of his legislative district provided that he secures the Practices Act. Also recommended to be charged in the complaints are some of the lawmakers‘
written concurrence of the legislator of the intended outside-district, endorsed by the Speaker of chiefs -of-staff or representatives, the heads and other officials of three (3) implementing
the House.78 Finally, any realignment of PDAF funds, modification and revision of project agencies, and the several presidents of the NGOs set up by Napoles.98
identification, as well as requests for release of funds, were all required to be favorably endorsed On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
by the House Committee on Appropriations and the Senate Committee on Finance, as the case investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the last three
may be.79 (3) years of the Arroyo administration. The purpose of the audit was to determine the propriety of
III. History of Presidential Pork Barrel in the Philippines. releases of funds under PDAF and the Various Infrastructures including Local Projects (VILP)100
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of by the DBM, the application of these funds and the implementation of projects by the appropriate
Members of Congress, the present cases and the recent controversies on the matter have, implementing agencies and several government-owned-and-controlled corporations (GOCCs).101
however, shown that the term‘s usage has expanded to include certain funds of the President The total releases covered by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in
such as the Malampaya Funds and the Presidential Social Fund. VILP, representing 58% and 32%, respectively, of the total PDAF and VILP releases that were
On the one hand, the Malampaya Funds was created as a special fund under Section 880 of found to have been made nationwide during the audit period.102 Accordingly, the Co A‘s findings
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on contained in its Report No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund
March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to (PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the
help intensify, strengthen, and consolidate government efforts relating to the exploration, highlights of which are as follows:103
exploitation, and development of indigenous energy resources vital to economic growth.82 Due to ● Amounts released for projects identified by a considerable number of legislators significantly
the energy-related activities of the government in the Malampaya natural gas field in Palawan, or exceeded their respective allocations.
the "Malampaya Deep Water Gas-to-Power Project",83 the special fund created under PD 910 ● Amounts were released for projects outside of legislative districts of sponsoring members of the
has been currently labeled as Malampaya Funds. Lower House.
On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD ● Total VILP releases for the period exceeded the total amount appropriated under the 2007 to
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 2009 GAAs.
1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended ● Infrastructure projects were constructed on private lots without these having been turned over to
PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending Section 1287 of the the government.
former law. As it stands, the Presidential Social Fund has been described as a special funding ● Significant amounts were released to implementing agencies without the latter‘s endorsement
facility managed and administered by the Presidential Management Staff through which the and without considering their mandated functions, administrative and technical capabilities to
President provides direct assistance to priority programs and projects not funded under the regular implement projects.
budget. It is sourced from the share of the government in the aggregate gross earnings of ● Implementation of most livelihood projects was not undertaken by the implementing agencies
PAGCOR.88 themselves but by NGOs endorsed by the proponent legislators to which the Funds were
IV. Controversies in the Philippines. transferred.
Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no ● The funds were transferred to the NGOs in spite of the absence of any appropriation law or
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain ordinance.
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel" ● Selection of the NGOs were not compliant with law and regulations.
erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an anonymous ● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772)
source, "blew the lid on the huge sums of government money that regularly went into the pockets projects amount to ₱6.156 Billion were either found questionable, or submitted
of legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘ (standard questionable/spurious documents, or failed to liquidate in whole or in part their utilization of the
operating procedure) among legislators and ranged from a low 19 percent to a high 52 percent of Funds.
the cost of each project, which could be anything from dredging, rip rapping, sphalting, concreting, ● Procurement by the NGOs, as well as some implementing agencies, of goods and services
and construction of school buildings."92 "Other sources of kickbacks that Candazo identified were reportedly used in the projects were not compliant with law.
public funds intended for medicines and textbooks. A few days later, the tale of the money trail As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied royalties in the operation of the Malampaya gas project off Palawan province intended for agrarian
by an illustration of a roasted pig."93 "The publication of the stories, including those about reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA Chairperson
congressional initiative allocations of certain lawmakers, including ₱3.6 Billion for a Congressman, Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the process of
sparked public outrage."94 preparing "one consolidated report" on the Malampaya Funds.105
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted V. The Procedural Antecedents.
in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary Spurred in large part by the findings contained in the CoA Report and the Napoles controversy,
support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be
unscrupulous Members of Congress," the petition was dismissed.95 declared unconstitutional. To recount, the relevant procedural antecedents in these cases are as
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe follows:
into allegations that "the government has been defrauded of some ₱10 Billion over the past 10 On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
years by a syndicate using funds from the pork barrel of lawmakers and various government Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara
agencies for scores of ghost projects."96 The investigation was spawned by sworn affidavits of six Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of
(6) whistle-blowers who declared that JLN Corporation – "JLN" standing for Janet Lim Napoles prohibition be issued permanently restraining respondents Franklin M. Drilon and Feliciano S.
(Napoles) – had swindled billions of pesos from the public coffers for "ghost projects" using no Belmonte, Jr., in their respective capacities as the incumbent Senate President and Speaker of
fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly the ultimate the House of Representatives, from further taking any steps to enact legislation appropriating
recipients of PDAF funds, the whistle-blowers declared that the money was diverted into Napoles‘ funds for the "Pork Barrel System," in whatever form and by whatever name it may be called, and
private accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints from approving further releases pursuant thereto.106 The Alcantara Petition was docketed as
were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder, and three G.R. No. 208493.

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On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben appointed as amicus curiae and thereby requested to appear before the Court during the Oral
M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed Arguments.
an Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed
Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 the parties to submit their respective memoranda within a period of seven (7) days, or until
under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel October 17, 2013, which the parties subsequently did.
System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013 The Issues Before the Court
PDAF, and the Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Based on the pleadings, and as refined during the Oral Arguments, the following are the main
Presidential Social Fund,107 be declared unconstitutional and null and void for being acts issues for the Court‘s resolution:
constituting grave abuse of discretion. Also, they pray that the Court issue a TRO against I. Procedural Issues.
respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
in their respective capacities as the incumbent Executive Secretary, Secretary of the Department controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
of Budget and Management (DBM), and National Treasurer, or their agents, for them to judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated
immediately cease any expenditure under the aforesaid funds. Further, they pray that the Court August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine
order the foregoing respondents to release to the CoA and to the public: (a) "the complete Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R.
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and
specifying the use of the funds, the project or activity and the recipient entities or individuals, and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel
all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum, discretionary funds, System" under the principles of res judicata and stare decisis.
including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x II. Substantive Issues on the "Congressional Pork Barrel."
from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
and all pertinent data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with thereto are unconstitutional considering that they violate the principles of/constitutional provisions
the Congress of all presently off-budget, lump-sum, discretionary funds including, but not limited on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
to, proceeds from the Malampaya Funds and remittances from the PAGCOR."109 The Belgica accountability; (e) political dynasties; and (f) local autonomy.
Petition was docketed as G.R. No. 208566.110 III. Substantive Issues on the "Presidential Pork Barrel."
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance
unconstitutional, and a cease and desist order be issued restraining President Benigno Simeon S. the priority infrastructure development projects and to finance the restoration of damaged or
Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of destroyed facilities due to calamities, as may be directed and authorized by the Office of the
Congress and, instead, allow their release to fund priority projects identified and approved by the President of the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to
Local Development Councils in consultation with the executive departments, such as the DPWH, the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegations of
the Department of Tourism, the Department of Health, the Department of Transportation, and legislative power.
Communication and the National Economic Development Authority.111 The Nepomuceno Petition These main issues shall be resolved in the order that they have been stated. In addition, the Court
was docketed as UDK-14951.112 shall also tackle certain ancillary issues as prompted by the present cases.
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; The Court’s Ruling
(b) requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO The petitions are partly granted.
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or I. Procedural Issues.
any of the persons acting under their authority from releasing (1) the remaining PDAF allocated to The prevailing rule in constitutional litigation is that no question involving the constitutionality or
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for validity of a law or governmental act may be heard and decided by the Court unless there is
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual
910 but not for the purpose of "financing energy resource development and exploitation programs case or controversy calling for the exercise of judicial power; (b) the person challenging the act
and projects of the government‖ under the same provision; and (d) setting the consolidated cases must have the standing to question the validity of the subject act or issuance; (c) the question of
for Oral Arguments on October 8, 2013. constitutionality must be raised at the earliest opportunity ; and (d) the issue of constitutionality
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment must be the very lis mota of the case.118 Of these requisites, case law states that the first two are
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting the most important119 and, therefore, shall be discussed forthwith.
with respect to educational and medical assistance purposes, of the Court‘s September 10, 2013 A. Existence of an Actual Case or Controversy.
TRO, and that the consolidated petitions be dismissed for lack of merit.113 By constitutional fiat, judicial power operates only when there is an actual case or controversy.120
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply This is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that
to the Comment. "judicial power includes the duty of the courts of justice to settle actual controversies involving
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) rights which are legally demandable and enforceable x x x." Jurisprudence provides that an actual
on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal
Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference
Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013. or dispute.121 In other words, "there must be a contrariety of legal rights that can be interpreted
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by and enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an
the parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the actual case or controversy is the requirement of "ripeness," meaning that the questions raised for
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when
General) was directed to bring with him during the Oral Arguments representative/s from the DBM the act being challenged has had a direct adverse effect on the individual challenging it. It is a
and Congress who would be able to competently and completely answer questions related to, prerequisite that something had then been accomplished or performed by either branch before a
among others, the budgeting process and its implementation. Further, the CoA Chairperson was court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to

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pass upon constitutional issues through advisory opinions, bereft as they are of authority to The applicability of the first exception is clear from the fundamental posture of petitioners – they
resolve hypothetical or moot questions."124 essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
Based on these principles, the Court finds that there exists an actual and justiciable controversy in separation of powers, non-delegability of legislative power, checks and balances, accountability
these cases. and local autonomy.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the The applicability of the second exception is also apparent from the nature of the interests involved
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these – the constitutionality of the very system within which significant amounts of public funds have
consolidated cases are ripe for adjudication since the challenged funds and the provisions been and continue to be utilized and expended undoubtedly presents a situation of exceptional
allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya character as well as a matter of paramount public interest. The present petitions, in fact, have
Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently been lodged at a time when the system‘s flaws have never before been magnified. To the Court‘s
existing and operational; hence, there exists an immediate or threatened injury to petitioners as a mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the
result of the unconstitutional use of these public funds. government‘s own recognition that reforms are needed "to address the reported abuses of the
As for the PDAF, the Court must dispel the notion that the issues related thereto had been PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the importance of
rendered moot and academic by the reforms undertaken by respondents. A case becomes moot the matter. It is also by this finding that the Court finds petitioners‘ claims as not merely theorized,
when there is no more actual controversy between the parties or no useful purpose can be served speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by
in passing upon the merits.125 Differing from this description, the Court observes that the CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v.
respondents‘ proposed line-item budgeting scheme would not terminate the controversy nor CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed
diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget, PDAF funds, it was emphasized that:
and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
existing. Neither will the President‘s declaration that he had already "abolished the PDAF" render unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
the issues on PDAF moot precisely because the Executive branch of government has no tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
constitutional authority to nullify or annul its legal existence. By constitutional design, the ultimately the people's, property. The exercise of its general audit power is among the
annulment or nullification of a law may be done either by Congress, through the passage of a constitutional mechanisms that gives life to the check and balance system inherent in our form of
repealing law, or by the Court, through a declaration of unconstitutionality. Instructive on this point government.
is the following exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the It is the general policy of the Court to sustain the decisions of administrative authorities, especially
Solicitor General during the Oral Arguments:126 one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of
Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor separation of powers but also for their presumed expertise in the laws they are entrusted to
General Jardeleza: Yes, Your Honor. enforce. Findings of administrative agencies are accorded not only respect but also finality when
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, the decision and order are not tainted with unfairness or arbitrariness that would amount to grave
correct? abuse of discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the petition questioning its rulings. x x x. (Emphases supplied)
President was saying, "I am not sure that I will continue the release of the soft projects," and that Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
started, Your Honor. Now, whether or not that … (interrupted) these cases, the Court deems the findings under the CoA Report to be sufficient.
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the The Court also finds the third exception to be applicable largely due to the practical need for a
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA
Book 6 of the Revised Administrative Code128 x x x. So at most the President can suspend, now Chairperson estimates that thousands of notices of disallowances will be issued by her office in
if the President believes that the PDAF is unconstitutional, can he just refuse to implement it? connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their
PDAF because of the CoA Report, because of the reported irregularities and this Court can take way to the courts.132 Accordingly, there is a compelling need to formulate controlling principles
judicial notice, even outside, outside of the COA Report, you have the report of the whistle- relative to the issues raised herein in order to guide the bench, the bar, and the public, not just for
blowers, the President was just exercising precisely the duty …. the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the
xxxx government may be guided on how public funds should be utilized in accordance with
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you constitutional principles.
stop and investigate, and prosecute, he has done that. But, does that mean that PDAF has been Finally, the application of the fourth exception is called for by the recognition that the preparation
repealed? and passage of the national budget is, by constitutional imprimatur, an affair of annual
Solicitor General Jardeleza: No, Your Honor x x x. occurrence.133 The relevance of the issues before the Court does not cease with the passage of
xxxx a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by its multifarious
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a iterations throughout the course of history, lends a semblance of truth to petitioners‘ claim that "the
law to repeal it, or this Court declares it unconstitutional, correct? same dog will just resurface wearing a different collar."135 In Sanlakas v. Executive Secretary,136
Solictor General Jardeleza: Yes, Your Honor. the government had already backtracked on a previous course of action yet the Court used the
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied) "capable of repetition but evading review" exception in order "to prevent similar questions from re-
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and emerging."137 The situation similarly holds true to these cases. Indeed, the myriad of issues
academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving underlying the manner in which certain public funds are spent, if not resolved at this most
a case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the opportune time, are capable of repetition and hence, must not evade judicial review.
Constitution; second, the exceptional character of the situation and the paramount public interest B. Matters of Policy: the Political Question Doctrine.
is involved; third, when the constitutional issue raised requires formulation of controlling principles The "limitation on the power of judicial review to actual cases and controversies‖ carries the
to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet assurance that "the courts will not intrude into areas committed to the other branches of
evading review.129 government."138 Essentially, the foregoing limitation is a restatement of the political question

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doctrine which, under the classic formulation of Baker v. Carr,139 applies when there is found, Clearly, as taxpayers, they possess the requisite standing to question the validity of the existing
among others, "a textually demonstrable constitutional commitment of the issue to a coordinate "Pork Barrel System" under which the taxes they pay have been and continue to be utilized. It is
political department," "a lack of judicially discoverable and manageable standards for resolving it" undeniable that petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of
or "the impossibility of deciding without an initial policy determination of a kind clearly for non- public funds, if the Court so rules. Invariably, taxpayers have been allowed to sue where there is a
judicial discretion." Cast against this light, respondents submit that the "the political branches are claim that public funds are illegally disbursed or that public money is being deflected to any
in the best position not only to perform budget-related reforms but also to do them in response to improper purpose, or that public funds are wasted through the enforcement of an invalid or
the specific demands of their constituents" and, as such, "urge the Court not to impose a solution unconstitutional law,147 as in these cases.
at this stage."140 Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
The Court must deny respondents‘ submission. issues they have raised may be classified as matters "of transcendental importance, of
Suffice it to state that the issues raised before the Court do not present political but legal questions overreaching significance to society, or of paramount public interest."148 The CoA Chairperson‘s
which are within its province to resolve. A political question refers to "those questions which, under statement during the Oral Arguments that the present controversy involves "not merely a systems
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which failure" but a "complete breakdown of controls"149 amplifies, in addition to the matters above-
full discretionary authority has been delegated to the Legislature or executive branch of the discussed, the seriousness of the issues involved herein. Indeed, of greater import than the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent fundamental law by the enforcement of an invalid statute.150 All told, petitioners have sufficient
upon the wisdom of the political branches of government but rather a legal one which the locus standi to file the instant cases.
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system D. Res Judicata and Stare Decisis.
along constitutional lines is a task that the political branches of government are incapable of Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
rendering precisely because it is an exercise of judicial power. More importantly, the present simply, stare decisis which means "follow past precedents and do not disturb what has been
Constitution has not only vested the Judiciary the right to exercise judicial power but essentially settled") are general procedural law principles which both deal with the effects of previous but
makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the
clearer: "The judicial power shall be vested in one Supreme Court and in such lower courts as applicability of these principles in relation to its prior rulings in Philconsa and LAMP.
may be established by law. It includes the duty of the courts of justice to settle actual The focal point of res judicata is the judgment. The principle states that a judgment on the merits
controversies involving rights which are legally demandable and enforceable, and to determine in a previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
whether or not there has been a grave abuse of discretion amounting to lack or excess of between the first and second actions, there exists an identity of parties, of subject matter, and of
jurisdiction on the part of any branch or instrumentality of the Government." In Estrada v. causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
Desierto,142 the expanded concept of judicial power under the 1987 Constitution and its effect on LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004
the political question doctrine was explained as follows:143 PDAF Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine Barrel System." Also, the ruling in LAMP is essentially a dismissal based on a procedural
when it expanded the power of judicial review of this court not only to settle actual controversies technicality – and, thus, hardly a judgment on the merits – in that petitioners therein failed to
involving rights which are legally demandable and enforceable but also to determine whether or present any "convincing proof x x x showing that, indeed, there were direct releases of funds to
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the the Members of Congress, who actually spend them according to their sole discretion" or
part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of kickbacks
"thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new and has become a common exercise of unscrupulous Members of Congress." As such, the Court
provision, however, courts are given a greater prerogative to determine what it can do to prevent up held, in view of the presumption of constitutionality accorded to every law, the 2004 PDAF
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or Article, and saw "no need to review or reverse the standing pronouncements in the said case."
instrumentality of government. Clearly, the new provision did not just grant the Court power of Hence, for the foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP
doing nothing. x x x (Emphases supplied) cases are concerned, cannot apply.
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional On the other hand, the focal point of stare decisis is the doctrine created. The principle,
boundaries, it does not assert any superiority over the other departments; does not in reality nullify entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred certainty, a conclusion reached in one case should be doctrinally applied to those that follow if the
obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant facts are substantially the same, even though the parties may be different. It proceeds from the
of the reforms undertaken by its co-equal branches of government. But it is by constitutional force first principle of justice that, absent any powerful countervailing considerations, like cases ought to
that the Court must faithfully perform its duty. Ultimately, it is the Court‘s avowed intention that a be decided alike. Thus, where the same questions relating to the same event have been put
resolution of these cases would not arrest or in any manner impede the endeavors of the two forward by the parties similarly situated as in a previous case litigated and decided by a competent
other branches but, in fact, help ensure that the pillars of change are erected on firm constitutional court, the rule of stare decisis is a bar to any attempt to re-litigate the same issue.153
grounds. After all, it is in the best interest of the people that each great branch of government, Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e.,
within its own sphere, contributes its share towards achieving a holistic and genuine solution to the the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners‘
problems of society. For all these reasons, the Court cannot heed respondents‘ plea for judicial posturing was that "the power given to the Members of Congress to propose and identify projects
restraint. and activities to be funded by the CDF is an encroachment by the legislature on executive power,
C. Locus Standi. since said power in an appropriation act is in implementation of the law" and that "the proposal
"The gist of the question of standing is whether a party alleges such personal stake in the outcome and identification of the projects do not involve the making of laws or the repeal and amendment
of the controversy as to assure that concrete adverseness which sharpens the presentation of thereof, the only function given to the Congress by the Constitution."154 In deference to the
issues upon which the court depends for illumination of difficult constitutional questions. Unless a foregoing submissions, the Court reached the following main conclusions: one, under the
person is injuriously affected in any of his constitutional rights by the operation of statute or Constitution, the power of appropriation, or the "power of the purse," belongs to Congress; two,
ordinance, he has no standing."145 the power of appropriation carries with it the power to specify the project or activity to be funded
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and under the appropriation law and it can be detailed and as broad as Congress wants it to be; and,
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury."146 three, the proposals and identifications made by Members of Congress are merely

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recommendatory. At once, it is apparent that the Philconsa resolution was a limited response to a manner by which lump-sum, discretionary funds, primarily intended for local projects, are utilized
separation of powers problem, specifically on the propriety of conferring post-enactment through the respective participations of the Legislative and Executive branches of government,
identification authority to Members of Congress. On the contrary, the present cases call for a more including its members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary
holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, funds:
formative as they are of the entire "Pork Barrel System" as well as (b) the intra-relation of post- First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
enactment measures contained within a particular CDF or PDAF Article, including not only those discretionary fund wherein legislators, either individually or collectively organized into committees,
related to the area of project identification but also to the areas of fund release and realignment. are able to effectively control certain aspects of the fund’s utilization through various post-
The complexity of the issues and the broader legal analyses herein warranted may be, therefore, enactment measures and/or practices. In particular, petitioners consider the PDAF, as it appears
considered as a powerful countervailing reason against a wholesale application of the stare under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment
decisis principle. measure that allows individual legislators to wield a collective power;160 and
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As discretionary fund which allows the President to determine the manner of its utilization. For
may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
allowing Members of Congress to propose and identify of projects would be that the said Malampaya Funds and the Presidential Social Fund.
identification authority is but an aspect of the power of appropriation which has been With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
constitutionally lodged in Congress. From this premise, the contradictions may be easily seen. If these cases.
the authority to identify projects is an aspect of appropriation and the power of appropriation is a B. Substantive Issues on the Congressional Pork Barrel.
form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress which 1. Separation of Powers.
should exercise such authority, and not its individual Members; (b) such authority must be a. Statement of Principle.
exercised within the prescribed procedure of law passage and, hence, should not be exercised The principle of separation of powers refers to the constitutional demarcation of the three
after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
force of law and, hence, cannot be merely recommendatory. Justice Vitug‘s Concurring Opinion in Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and in
the same case sums up the Philconsa quandary in this wise: "Neither would it be objectionable for bold lines, allotment of power to the executive, the legislative and the judicial departments of the
Congress, by law, to appropriate funds for such specific projects as it may be minded; to give that government."163 To the legislative branch of government, through Congress,164 belongs the
authority, however, to the individual members of Congress in whatever guise, I am afraid, would power to make laws; to the executive branch of government, through the President,165 belongs
be constitutionally impermissible." As the Court now largely benefits from hindsight and current the power to enforce laws; and to the judicial branch of government, through the Court,166
findings on the matter, among others, the CoA Report, the Court must partially abandon its belongs the power to interpret laws. Because the three great powers have been, by constitutional
previous ruling in Philconsa insofar as it validated the post-enactment identification authority of design, ordained in this respect, "each department of the government has exclusive cognizance of
Members of Congress on the guise that the same was merely recommendatory. This postulate matters within its jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has
raises serious constitutional inconsistencies which cannot be simply excused on the ground that no authority to execute or construe the law, the executive has no authority to make or construe the
such mechanism is "imaginative as it is innovative." Moreover, it must be pointed out that the law, and the judiciary has no power to make or execute the law."168 The principle of separation of
recent case of Abakada Guro Party List v. Purisima155 (Abakada) has effectively overturned powers and its concepts of autonomy and independence stem from the notion that the powers of
Philconsa‘s allowance of post-enactment legislator participation in view of the separation of government must be divided to avoid concentration of these powers in any one branch; the
powers principle. These constitutional inconsistencies and the Abakada rule will be discussed in division, it is hoped, would avoid any single branch from lording its power over the other branches
greater detail in the ensuing section of this Decision. or the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal
As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality branches of government that are equally capable of independent action in exercising their
and, hence, has not set any controlling doctrine susceptible of current application to the respective mandates. Lack of independence would result in the inability of one branch of
substantive issues in these cases. In fine, stare decisis would not apply. government to check the arbitrary or self-interest assertions of another or others.170
II. Substantive Issues. Broadly speaking, there is a violation of the separation of powers principle when one branch of
A. Definition of Terms. government unduly encroaches on the domain of another. US Supreme Court decisions instruct
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they interfere impermissibly with the other’s performance of its constitutionally assigned function";171
are essential to the ensuing discourse. and "alternatively, the doctrine may be violated when one branch assumes a function that more
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and properly is entrusted to another."172 In other words, there is a violation of the principle when there
Executive branches of government to accumulate lump-sum public funds in their offices with is impermissible (a) interference with and/or (b) assumption of another department‘s functions.
unchecked discretionary powers to determine its distribution as political largesse."156 They assert The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
that the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated function both constitutionally assigned and properly entrusted to the Executive branch of
through the appropriations process to an individual officer; (b) the officer is given sole and broad government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the
discretion in determining how the funds will be used or expended; (c) the guidelines on how to phase of budget execution "covers the various operational aspects of budgeting" and accordingly
spend or use the funds in the appropriation are either vague, overbroad or inexistent; and (d) includes "the evaluation of work and financial plans for individual activities," the "regulation and
projects funded are intended to benefit a definite constituency in a particular part of the country release of funds" as well as all "other related activities" that comprise the budget execution
and to help the political careers of the disbursing official by yielding rich patronage benefits.157 cycle.174 This is rooted in the principle that the allocation of power in the three principal branches
They further state that the Pork Barrel System is comprised of two (2) kinds of discretionary public of government is a grant of all powers inherent in them.175 Thus, unless the Constitution provides
funds: first, the Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, otherwise, the Executive department should exclusively exercise all roles and prerogatives which
second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD go into the implementation of the national budget as provided under the GAA as well as any other
910 and the Presidential Social Fund under PD 1869, as amended by PD 1993.159 appropriation law.
Considering petitioners‘ submission and in reference to its local concept and legal history, the In view of the foregoing, the Legislative branch of government, much more any of its members,
Court defines the Pork Barrel System as the collective body of rules and practices that govern the should not cross over the field of implementing the national budget since, as earlier stated, the

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same is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that Provision 2 provides that the implementing agencies shall, within 90 days from the GAA is passed,
"Congress enters the picture when it deliberates or acts on the budget proposals of the President. submit to Congress a more detailed priority list, standard or design prepared and submitted by
Thereafter, Congress, "in the exercise of its own judgment and wisdom, formulates an implementing agencies from which the legislator may make his choice. The same provision further
appropriation act precisely following the process established by the Constitution, which specifies authorizes legislators to identify PDAF projects outside his district for as long as the representative
that no money may be paid from the Treasury except in accordance with an appropriation made of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF
by law." Upon approval and passage of the GAA, Congress‘ law -making role necessarily comes projects refer to "projects to be identified by legislators"188 and thereunder provides the allocation
to an end and from there the Executive‘s role of implementing the national budget begins. So as limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of Special
not to blur the constitutional boundaries between them, Congress must "not concern it self with Provision 4 requires that any modification and revision of the project identification "shall be
details for implementation by the Executive."176 submitted to the House Committee on Appropriations and the Senate Committee on Finance for
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held favorable endorsement to the DBM or the implementing agency, as the case may be." From the
that "from the moment the law becomes effective, any provision of law that empowers Congress or foregoing special provisions, it cannot be seriously doubted that legislators have been accorded
any of its members to play any role in the implementation or enforcement of the law violates the post-enactment authority to identify PDAF projects.
principle of separation of powers and is thus unconstitutional."177 It must be clarified, however, Aside from the area of project identification, legislators have also been accorded post-enactment
that since the restriction only pertains to "any role in the implementation or enforcement of the authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
law," Congress may still exercise its oversight function which is a mechanism of checks and authority of legislators to participate in the area of fund release through congressional committees
balances that the Constitution itself allows. But it must be made clear that Congress‘ role must be is contained in Special Provision 5 which explicitly states that "all request for release of funds shall
confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed
oversight is bereft of any constitutional basis and hence, tantamount to impermissible interference by House Committee on Appropriations and the Senate Committee on Finance, as the case may
and/or assumption of executive functions. As the Court ruled in Abakada:178 be"; while their statutory authority to participate in the area of fund realignment is contained in: first
Any post-enactment congressional measure x x x should be limited to scrutiny and , paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment
investigation.1âwphi1 In particular, congressional oversight must be confined to the following: of funds shall be submitted to the House Committee on Appropriations and the Senate Committee
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings on Finance for favorable endorsement to the DBM or the implementing agency, as the case may
conducted in connection with it, its power to ask heads of departments to appear before and be be‖ ; and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
heard by either of its Houses on any matter pertaining to their departments and its power of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
confirmation; and Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to
(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress approve realignment from one project/scope to another within the allotment received from this
to conduct inquiries in aid of legislation. Fund, subject to among others (iii) the request is with the concurrence of the legislator concerned."
Any action or step beyond that will undermine the separation of powers guaranteed by the Clearly, these post-enactment measures which govern the areas of project identification, fund
Constitution. (Emphases supplied) release and fund realignment are not related to functions of congressional oversight and, hence,
b. Application. allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of
designed to allow individual legislators to interfere "way past the time it should have ceased" or, budgeting," including "the evaluation of work and financial plans for individual activities" and the
particularly, "after the GAA is passed."179 They state that the findings and recommendations in "regulation and release of funds" in violation of the separation of powers principle. The
the CoA Report provide "an illustration of how absolute and definitive the power of legislators wield fundamental rule, as categorically articulated in Abakada, cannot be overstated – from the
over project implementation in complete violation of the constitutional principle of separation of moment the law becomes effective, any provision of law that empowers Congress or any of its
powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to members to play any role in the implementation or enforcement of the law violates the principle of
exist on the condition that individual legislators limited their role to recommending projects and not separation of powers and is thus unconstitutional.191 That the said authority is treated as merely
if they actually dictate their implementation.181 recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat,
For their part, respondents counter that the separations of powers principle has not been violated covers any role in the implementation or enforcement of the law. Towards this end, the Court must
since the President maintains "ultimate authority to control the execution of the GAA‖ and that he therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification
"retains the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in on the guise that the same is merely recommendatory and, as such, respondents‘ reliance on the
Philconsa, "upheld the constitutionality of the power of members of Congress to propose and same falters altogether.
identify projects so long as such proposal and identification are recommendatory."183 As such, Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
they claim that "everything in the Special Provisions [of the 2013 PDAF Article follows the position that the identification authority of legislators is only of recommendatory import. Quite the
Philconsa framework, and hence, remains constitutional."184 contrary, respondents – through the statements of the Solicitor General during the Oral Arguments
The Court rules in favor of petitioners. – have admitted that the identification of the legislator constitutes a mandatory requirement before
As may be observed from its legal history, the defining feature of all forms of Congressional Pork his PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said
Barrel would be the authority of legislators to participate in the post-enactment phases of project act to the entire budget execution process:192
implementation. Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF
At its core, legislators – may it be through project lists,185 prior consultations186 or program of the legislator be utilized?
menus187 – have been consistently accorded post-enactment authority to identify the projects Solicitor General Jardeleza: No, Your Honor.
they desire to be funded through various Congressional Pork Barrel allocations. Under the 2013 Justice Bernabe: It cannot?
PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed Solicitor General Jardeleza: It cannot… (interrupted)
from the import of Special Provisions 1 to 3 as well as the second paragraph of Special Provision Justice Bernabe: So meaning you should have the identification of the project by the individual
4. To elucidate, Special Provision 1 embodies the program menu feature which, as evinced from legislator?
past PDAF Articles, allows individual legislators to identify PDAF projects for as long as the Solicitor General Jardeleza: Yes, Your Honor.
identified project falls under a general program listed in the said menu. Relatedly, Special xxxx

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Justice Bernabe: In short, the act of identification is mandatory? the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no actual operation (contingent rule-making).199 The conceptual treatment and limitations of
identification. delegated rule-making were explained in the case of People v. Maceren200 as follows:
xxxx The grant of the rule-making power to administrative agencies is a relaxation of the principle of
Justice Bernabe: Now, would you know of specific instances when a project was implemented separation of powers and is an exception to the nondelegation of legislative powers.
without the identification by the individual legislator? Administrative regulations or "subordinate legislation" calculated to promote the public interest are
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific necessary because of "the growing complexity of modern life, the multiplication of the subjects of
examples. I would doubt very much, Your Honor, because to implement, there is a need for a governmental regulations, and the increased difficulty of administering the law."
SARO and the NCA. And the SARO and the NCA are triggered by an identification from the xxxx
legislator. Nevertheless, it must be emphasized that the rule-making power must be confined to details for
xxxx regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a cannot be extended to amending or expanding the statutory requirements or to embrace matters
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases
the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he supplied)
cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in b. Application.
that sense, Your Honor. (Emphases supplied) In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all enactment identification authority to individual legislators, violates the principle of non-delegability
other provisions of law which similarly allow legislators to wield any form of post-enactment since said legislators are effectively allowed to individually exercise the power of appropriation,
authority in the implementation or enforcement of the budget, unrelated to congressional which – as settled in Philconsa – is lodged in Congress.201 That the power to appropriate must be
oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution
thereto, informal practices, through which legislators have effectively intruded into the proper which states that: "No money shall be paid out of the Treasury except in pursuance of an
phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That such Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of
informal practices do exist and have, in fact, been constantly observed throughout the years has appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b)
not been substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno a specified purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a
(Chief Justice Sereno) during the Oral Arguments of these cases:193 personal lump-sum fund from which they are able to dictate (a) how much from such fund would
Chief Justice Sereno: go to (b) a specific project or beneficiary that they themselves also determine. As these two (2)
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, acts comprise the exercise of the power of appropriation as described in Bengzon, and given that
if we enforces the initial thought that I have, after I had seen the extent of this research made by the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
my staff, that neither the Executive nor Congress frontally faced the question of constitutional legislators have been conferred the power to legislate which the Constitution does not, however,
compatibility of how they were engineering the budget process. In fact, the words you have been allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013 contain the similar legislative identification feature as herein discussed, as unconstitutional.
PDAF provisions did was to codify in one section all the past practice that had been done since 3. Checks and Balances.
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special a. Statement of Principle; Item-Veto Power.
Provisions. x x x (Emphasis and underscoring supplied) The fact that the three great powers of government are intended to be kept separate and distinct
Ultimately, legislators cannot exercise powers which they do not have, whether through formal does not mean that they are absolutely unrestrained and independent of each other. The
measures written into the law or informal practices institutionalized in government agencies, else Constitution has also provided for an elaborate system of checks and balances to secure
the Executive department be deprived of what the Constitution has vested as its own. coordination in the workings of the various departments of the government.203
2. Non-delegability of Legislative Power. A prime example of a constitutional check and balance would be the President’s power to veto an
a. Statement of Principle. item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively through a process known as "bill presentment." The President‘s item-veto power is found in
exercised by the body to which the Constitution has conferred the same. In particular, Section 1, Section 27(2), Article VI of the 1987 Constitution which reads as follows:
Article VI of the 1987 Constitution states that such power shall be vested in the Congress of the Sec. 27. x x x.
Philippines which shall consist of a Senate and a House of Representatives, except to the extent xxxx
reserved to the people by the provision on initiative and referendum.195 Based on this provision, it (2) The President shall have the power to veto any particular item or items in an appropriation,
is clear that only Congress, acting as a bicameral body, and the people, through the process of revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.
initiative and referendum, may constitutionally wield legislative power and no other. This premise The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
embodies the principle of non-delegability of legislative power, and the only recognized exceptions his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
thereto would be: (a) delegated legislative power to local governments which, by immemorial procedures" for law-passage as specified under the Constitution.204 As stated in Abakada, the
practice, are allowed to legislate on purely local matters;196 and (b) constitutionally-grafted final step in the law-making process is the "submission of the bill to the President for approval.
exceptions such as the authority of the President to, by law, exercise powers necessary and Once approved, it takes effect as law after the required publication."205
proper to carry out a declared national policy in times of war or other national emergency,197 or Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the
fix within specified limits, and subject to such limitations and restrictions as Congress may impose, Court, in Bengzon, explained that:206
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts The former Organic Act and the present Constitution of the Philippines make the Chief Executive
within the framework of the national development program of the Government.198 an integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule- essentially a legislative act. The questions presented to the mind of the Chief Executive are
making authority to implementing agencies for the limited purpose of either filling up the details of

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precisely the same as those the legislature must determine in passing a bill, except that his will be appropriation of money‖ and hence, without a proper line-item which the President may veto. As a
a broader point of view. practical result, the President would then be faced with the predicament of either vetoing the entire
The Constitution is a limitation upon the power of the legislative department of the government, appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire
but in this respect it is a grant of power to the executive department. The Legislature has the appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to
affirmative power to enact laws; the Chief Executive has the negative power by the constitutional state that such arrangement also raises non-delegability issues considering that the implementing
exercise of which he may defeat the will of the Legislature. It follows that the Chief Executive must authority would still have to determine, again, both the actual amount to be expended and the
find his authority in the Constitution. But in exercising that authority he may not be confined to actual purpose of the appropriation. Since the foregoing determinations constitute the integral
rules of strict construction or hampered by the unwise interference of the judiciary. The courts will aspects of the power to appropriate, the implementing authority would, in effect, be exercising
indulge every intendment in favor of the constitutionality of a veto in the same manner as they will legislative prerogatives in violation of the principle of non-delegability.
presume the constitutionality of an act as originally passed by the Legislature. (Emphases b. Application.
supplied) In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
The justification for the President‘s item-veto power rests on a variety of policy goals such as to appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify President the chance to veto that item later on."212 Accordingly, they submit that the "item veto
the executive branch‘s role in the budgetary process.208 In Immigration and Naturalization power of the President mandates that appropriations bills adopt line-item budgeting" and that
Service v. Chadha, the US Supreme Court characterized the President‘s item-power as "a salutary "Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given
check upon the legislative body, calculated to guard the community against the effects of factions, power of the President useless."213
precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a On the other hand, respondents maintain that the text of the Constitution envisions a process
majority of that body"; phrased differently, it is meant to "increase the chances in favor of the which is intended to meet the demands of a modernizing economy and, as such, lump-sum
community against the passing of bad laws, through haste, inadvertence, or design."209 appropriations are essential to financially address situations which are barely foreseen when a
For the President to exercise his item-veto power, it necessarily follows that there exists a proper GAA is enacted. They argue that the decision of the Congress to create some lump-sum
"item" which may be the object of the veto. An item, as defined in the field of appropriations, appropriations is constitutionally allowed and textually-grounded.214
pertains to "the particulars, the details, the distinct and severable parts of the appropriation or of The Court agrees with petitioners.
the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation
Supreme Court characterized an item of appropriation as follows: limit since the said amount would be further divided among individual legislators who would then
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
of money, not some general provision of law which happens to be put into an appropriation bill. PDAF funds based on their own discretion. As these intermediate appropriations are made by
(Emphases supplied) legislators only after the GAA is passed and hence, outside of the law, it necessarily means that
On this premise, it may be concluded that an appropriation bill, to ensure that the President may the actual items of PDAF appropriation would not have been written into the General
be able to exercise his power of item veto, must contain "specific appropriations of money" and Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-
not only "general provisions" which provide for parameters of appropriation. enactment legislative identification budgeting system fosters the creation of a budget within a
Further, it is significant to point out that an item of appropriation must be an item characterized by budget" which subverts the prescribed procedure of presentment and consequently impairs the
singular correspondence – meaning an allocation of a specified singular amount for a specified President‘s power of item veto. As petitioners aptly point out, the above-described system forces
singular purpose, otherwise known as a "line-item."211 This treatment not only allows the item to the President to decide between (a) accepting the entire ₱24.79 Billion PDAF allocation without
be consistent with its definition as a "specific appropriation of money" but also ensures that the knowing the specific projects of the legislators, which may or may not be consistent with his
President may discernibly veto the same. Based on the foregoing formulation, the existing national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with
Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a legitimate projects.215
specified amount for a specific purpose, would then be considered as "line- item" appropriations Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
which are rightfully subject to item veto. Likewise, it must be observed that an appropriation may would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
be validly apportioned into component percentages or values; however, it is crucial that each appropriation above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be
percentage or value must be allocated for its own corresponding purpose for such component to treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid medical missions, assistance to indigents, preservation of historical materials, construction of
appropriation may even have several related purposes that are by accounting and budgeting roads, flood control, etc. This setup connotes that the appropriation law leaves the actual amounts
practice considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in and purposes of the appropriation for further determination and, therefore, does not readily
which case the related purposes shall be deemed sufficiently specific for the exercise of the indicate a discernible item which may be subject to the President‘s power of item veto.
President‘s item veto power. Finally, special purpose funds and discretionary funds would equally In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
square with the constitutional mechanism of item-veto for as long as they follow the rule on Chairperson relays, "limited state auditors from obtaining relevant data and information that would
singular correspondence as herein discussed. Anent special purpose funds, it must be added that aid in more stringently auditing the utilization of said Funds."216 Accordingly, she recommends
Section 25(4), Article VI of the 1987 Constitution requires that the "special appropriations bill shall the adoption of a "line by line budget or amount per proposed program, activity or project, and per
specify the purpose for which it is intended, and shall be supported by funds actually available as implementing agency."217
certified by the National Treasurer, or t o be raised by a corresponding revenue proposal therein." Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Meanwhile, with respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
requires that said funds "shall be disbursed only for public purposes to be supported by system provides for a greater degree of flexibility to account for future contingencies cannot be an
appropriate vouchers and subject to such guidelines as may be prescribed by law." excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a is that unconstitutional means do not justify even commendable ends.218
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such c. Accountability.
appropriation type necessitates the further determination of both the actual amount to be Petitioners further relate that the system under which various forms of Congressional Pork Barrel
expended and the actual purpose of the appropriation which must still be chosen from the multiple operate defies public accountability as it renders Congress incapable of checking itself or its
purposes stated in the law, it cannot be said that the appropriation law already indicates a "specific Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a

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direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
"from fiscalizers" into "financially-interested partners."219 They also claim that the system has an political dynasties as may be defined by law. (Emphasis and underscoring supplied)
effect on re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they At the outset, suffice it to state that the foregoing provision is considered as not self-executing due
add that the "PDAF impairs the power of impeachment" as such "funds are indeed quite useful, ‘to to the qualifying phrase "as may be defined by law." In this respect, said provision does not, by
well, accelerate the decisions of senators.‘"220 and of itself, provide a judicially enforceable constitutional right but merely specifies guideline for
The Court agrees in part. legislative or executive action.226 Therefore, since there appears to be no standing law which
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on
office is a public trust," is an overarching reminder that every instrumentality of government should this issue.
exercise their official functions only in accordance with the principles of the Constitution which In any event, the Court finds the above-stated argument on this score to be largely speculative
embodies the parameters of the people‘s trust. The notion of a public trust connotes since it has not been properly demonstrated how the Pork Barrel System would be able to
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact propagate political dynasties.
accountability from public officers. 5. Local Autonomy.
Among others, an accountability mechanism with which the proper expenditure of public funds The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2
may be checked is the power of congressional oversight. As mentioned in Abakada,222 and 3, Article X of the 1987 Constitution which read as follows:
congressional oversight may be performed either through: (a) scrutiny based primarily on ARTICLE II
Congress‘ power of appropriation and the budget hearings conducted in connection with it, its Sec. 25. The State shall ensure the autonomy of local governments.
power to ask heads of departments to appear before and be heard by either of its Houses on any ARTICLE X
matter pertaining to their departments and its power of confirmation;223 or (b) investigation and Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in Sec. 3. The Congress shall enact a local government code which shall provide for a more
aid of legislation.224 responsive and accountable local government structure instituted through a system of
The Court agrees with petitioners that certain features embedded in some forms of Congressional decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The different local government units their powers, responsibilities, and resources, and provide for the
fact that individual legislators are given post-enactment roles in the implementation of the budget qualifications, election, appointment and removal, term, salaries, powers and functions and duties
makes it difficult for them to become disinterested "observers" when scrutinizing, investigating or of local officials, and all other matters relating to the organization and operation of the local units.
monitoring the implementation of the appropriation law. To a certain extent, the conduct of Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government
oversight would be tainted as said legislators, who are vested with post-enactment authority, Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically explicated
would, in effect, be checking on activities in which they themselves participate. Also, it must be as follows:
pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial
Article VI of the 1987 Constitution which provides that: and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to
Sec. 14. No Senator or Member of the House of Representatives may personally appear as enable them to attain their fullest development as self-reliant communities and make them more
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other effective partners in the attainment of national goals. Toward this end, the State shall provide for a
administrative bodies. Neither shall he, directly or indirectly, be interested financially in any more responsive and accountable local government structure instituted through a system of
contract with, or in any franchise or special privilege granted by the Government, or any decentralization whereby local government units shall be given more powers, authority,
subdivision, agency, or instrumentality thereof, including any government-owned or controlled responsibilities, and resources. The process of decentralization shall proceed from the National
corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before Government to the local government units.
any office of the Government for his pecuniary benefit or where he may be called upon to act on xxxx
account of his office. (Emphasis supplied) (c) It is likewise the policy of the State to require all national agencies and offices to conduct
Clearly, allowing legislators to intervene in the various phases of project implementation – a matter periodic consultations with appropriate local government units, nongovernmental and people‘s
before another office of government – renders them susceptible to taking undue advantage of their organizations, and other concerned sectors of the community before any project or program is
own office. implemented in their respective jurisdictions. (Emphases and underscoring supplied)
The Court, however, cannot completely agree that the same post-enactment authority and/or the The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office. empower local government units (LGUs) to develop and ultimately, become self-sustaining and
Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
area of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed Commission v. Intermediate Appellate Court:228
based on particular facts and on a case-to-case basis. This is as good an occasion as any to stress the commitment of the Constitution to the policy of
Finally, while the Court accounts for the possibility that the close operational proximity between local autonomy which is intended to provide the needed impetus and encouragement to the
legislators and the Executive department, through the former‘s post-enactment participation, may development of our local political subdivisions as "self - reliant communities." In the words of
affect the process of impeachment, this matter largely borders on the domain of politics and does Jefferson, "Municipal corporations are the small republics from which the great one derives its
not strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper strength." The vitalization of local governments will enable their inhabitants to fully exploit their
subject of judicial assessment. resources and more important, imbue them with a deepened sense of involvement in public affairs
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section as members of the body politic. This objective could be blunted by undue interference by the
14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article national government in purely local affairs which are best resolved by the officials and inhabitants
and other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional. of such political units. The decision we reach today conforms not only to the letter of the pertinent
4. Political Dynasties. laws but also to the spirit of the Constitution.229 (Emphases and underscoring supplied)
One of the petitioners submits that the Pork Barrel System enables politicians who are members In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
of political dynasties to accumulate funds to perpetuate themselves in power, in contravention of constitutional principles on local autonomy since it allows district representatives, who are national
Section 26, Article II of the 1987 Constitution225 which states that: officers, to substitute their judgments in utilizing public funds for local development.230 The Court
agrees with petitioners.

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Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a used without any valid law allowing for their proper appropriation in violation of Section 29(1),
recognition that individual members of Congress, far more than the President and their Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury
congressional colleagues, are likely to be knowledgeable about the needs of their respective except in pursuance of an appropriation made by law."239
constituents and the priority to be given each project."231 Drawing strength from this The Court disagrees.
pronouncement, previous legislators justified its existence by stating that "the relatively small "An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
projects implemented under the Congressional Pork Barrel complement and link the national Constitution exists when a provision of law (a) sets apart a determinate or determinable240
development goals to the countryside and grassroots as well as to depressed areas which are amount of money and (b) allocates the same for a particular public purpose. These two minimum
overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his designations of amount and purpose stem from the very definition of the word "appropriation,"
August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President Aquino which means "to allot, assign, set apart or apply to a particular use or purpose," and hence, if
mentioned that the Congressional Pork Barrel was originally established for a worthy goal, which written into the law, demonstrate that the legislative intent to appropriate exists. As the
is to enable the representatives to identify projects for communities that the LGU concerned Constitution "does not provide or prescribe any particular form of words or religious recitals in
cannot afford.233 which an authorization or appropriation by Congress shall be made, except that it be ‘made by
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system law,‘" an appropriation law may – according to Philconsa – be "detailed and as broad as Congress
which actually belies the avowed intention of "making equal the unequal." In particular, the Court wants it to be" for as long as the intent to appropriate may be gleaned from the same. As held in
observes that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, the case of Guingona, Jr.:241
without taking into account the specific interests and peculiarities of the district the legislator There is no provision in our Constitution that provides or prescribes any particular form of words or
represents. In this regard, the allocation/division limits are clearly not based on genuine religious recitals in which an authorization or appropriation by Congress shall be made, except
parameters of equality, wherein economic or geographic indicators have been taken into that it be "made by law," such as precisely the authorization or appropriation under the questioned
consideration. As a result, a district representative of a highly-urbanized metropolis gets the same presidential decrees. In other words, in terms of time horizons, an appropriation may be made
amount of funding as a district representative of a far-flung rural province which would be relatively impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as
"underdeveloped" compared to the former. To add, what rouses graver scrutiny is that even by enactment of laws by the present Congress), just as said appropriation may be made in
Senators and Party-List Representatives – and in some years, even the Vice-President – who do general as well as in specific terms. The Congressional authorization may be embodied in annual
not represent any locality, receive funding from the Congressional Pork Barrel as well. These laws, such as a general appropriations act or in special provisions of laws of general or special
certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to make equal application which appropriate public funds for specific public purposes, such as the questioned
the unequal." Ultimately, the PDAF and CDF had become personal funds under the effective decrees. An appropriation measure is sufficient if the legislative intention clearly and certainly
control of each legislator and given unto them on the sole account of their office. appears from the language employed (In re Continuing Appropriations, 32 P. 272), whether in the
The Court also observes that this concept of legislator control underlying the CDF and PDAF past or in the present. (Emphases and underscoring supplied)
conflicts with the functions of the various Local Development Councils (LDCs) which are already Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and To constitute an appropriation there must be money placed in a fund applicable to the designated
social development, and coordinating development efforts within its territorial jurisdiction."234 purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
Considering that LDCs are instrumentalities whose functions are essentially geared towards purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
managing local affairs,235 their programs, policies and resolutions should not be overridden nor public funds for a public purpose. No particular form of words is necessary for the purpose, if the
duplicated by individual legislators, who are national officers that have no law-making authority intention to appropriate is plainly manifested. (Emphases supplied)
except only when acting as a body. The undermining effect on local autonomy caused by the post- Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must
enactment authority conferred to the latter was succinctly put by petitioners in the following be the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
wise:236 reiterate, if a legal provision designates a determinate or determinable amount of money and
With PDAF, a Congressman can simply bypass the local development council and initiate projects allocates the same for a particular public purpose, then the legislative intent to appropriate
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven becomes apparent and, hence, already sufficient to satisfy the requirement of an "appropriation
project identification has not only contributed little to the overall development of the district, but made by law" under contemplation of the Constitution.
has even contributed to "further weakening infrastructure planning and coordination efforts of the Section 8 of PD 910 pertinently provides:
government." Section 8. Appropriations. x x x
Thus, insofar as individual legislators are authorized to intervene in purely local matters and All fees, revenues and receipts of the Board from any and all sources including receipts from
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms service contracts and agreements such as application and processing fees, signature bonus,
of Congressional Pork Barrel is deemed unconstitutional. discovery bonus, production bonus; all money collected from concessionaires, representing
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
substantive issues involving the Presidential Pork Barrel. government share representing royalties, rentals, production share on service contracts and
C. Substantive Issues on the Presidential Pork Barrel. similar payments on the exploration, development and exploitation of energy resources, shall form
1. Validity of Appropriation. part of a Special Fund to be used to finance energy resource development and exploitation
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by programs and projects of the government and for such other purposes as may be hereafter
PD 1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, directed by the President. (Emphases supplied)
as invalid appropriations laws since they do not have the "primary and specific" purpose of Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
authorizing the release of public funds from the National Treasury. Petitioners submit that Section Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax,
8 of PD 910 is not an appropriation law since the "primary and specific‖ purpose of PD 910 is the the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
creation of an Energy Development Board and Section 8 thereof only created a Special Fund Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
incidental thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a ₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority
valid appropriations law since the allocation of the Presidential Social Fund is merely incidental to infrastructure development projects and to finance the restoration of damaged or destroyed
the "primary and specific" purpose of PD 1869 which is the amendment of the Franchise and facilities due to calamities, as may be directed and authorized by the Office of the President of the
Powers of PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being Philippines. (Emphases supplied)

65
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a) resource development and exploitation programs and projects of the government" states a
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts singular and general class and hence, cannot be treated as a statutory reference of specific things
of the Energy Development Board from any and all sources" (a determinable amount) "to be used from which the general phrase "for such other purposes" may be limited; second, the said phrase
to finance energy resource development and exploitation programs and projects of the also exhausts the class it represents, namely energy development programs of the
government and for such other purposes as may be hereafter directed by the President" (a government;250 and, third, the Executive department has, in fact, used the Malampaya Funds for
specified public purpose), and (b) Section 12 of PD 1869, as amended by PD 1993, which non-energy related purposes under the subject phrase, thereby contradicting respondents‘ own
similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent position that it is limited only to "energy resource development and exploitation programs and
share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate projects of the government."251 Thus, while Section 8 of PD 910 may have passed the
gross earnings be less than ₱150,000,000.00" (also a determinable amount) "to finance the completeness test since the policy of energy development is clearly deducible from its text, the
priority infrastructure development projects and x x x the restoration of damaged or destroyed phrase "and for such other purposes as may be hereafter directed by the President" under the
facilities due to calamities, as may be directed and authorized by the Office of the President of the same provision of law should nonetheless be stricken down as unconstitutional as it lies
Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article independently unfettered by any sufficient standard of the delegating law. This notwithstanding, it
VI of the 1987 Constitution. must be underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a Funds "to finance energy resource development and exploitation programs and projects of the
legal appropriation under the said constitutional provision precisely because, as earlier stated, it government," remains legally effective and subsisting. Truth be told, the declared
contains post-enactment measures which effectively create a system of intermediate unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya Funds
appropriations. These intermediate appropriations are the actual appropriations meant for would be used – as it should be used – only in accordance with the avowed purpose and intention
enforcement and since they are made by individual legislators after the GAA is passed, they occur of PD 910.
outside the law. As such, the Court observes that the real appropriation made under the 2013 As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF, but rather the post-enactment 1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on the
determinations made by the individual legislators which are, to repeat, occurrences outside of the same.252 Nevertheless, since the amendatory provision may be readily examined under the
law. Irrefragably, the 2013 PDAF Article does not constitute an "appropriation made by law" since current parameters of discussion, the Court proceeds to resolve its constitutionality.
it, in its truest sense, only authorizes individual legislators to appropriate in violation of the non- Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
delegability principle as afore-discussed. Fund may be used "to first, finance the priority infrastructure development projects and second, to
2. Undue Delegation. finance the restoration of damaged or destroyed facilities due to calamities, as may be directed
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation and authorized by the Office of the President of the Philippines." The Court finds that while the
of legislative power since the phrase "and for such other purposes as may be hereafter directed by second indicated purpose adequately curtails the authority of the President to spend the
the President" gives the President "unbridled discretion to determine for what purpose the funds Presidential Social Fund only for restoration purposes which arise from calamities, the first
will be used."243 Respondents, on the other hand, urged the Court to apply the principle of indicated purpose, however, gives him carte blanche authority to use the same fund for any
ejusdem generis to the same section and thus, construe the phrase "and for such other purposes infrastructure project he may so determine as a "priority". Verily, the law does not supply a
as may be hereafter directed by the President" to refer only to other purposes related "to energy definition of "priority in frastructure development projects" and hence, leaves the President without
resource development and exploitation programs and projects of the government."244 any guideline to construe the same. To note, the delimitation of a project as one of "infrastructure"
The Court agrees with petitioners‘ submissions. is too broad of a classification since the said term could pertain to any kind of facility. This may be
While the designation of a determinate or determinable amount for a particular public purpose is deduced from its lexicographic definition as follows: "the underlying framework of a system,
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative especially public services and facilities (such as highways, schools, bridges, sewers, and water-
guidelines if the same law delegates rule-making authority to the Executive245 either for the systems) needed to support commerce as well as economic and residential development."253 In
purpose of (a) filling up the details of the law for its enforcement, known as supplementary rule- fine, the phrase "to finance the priority infrastructure development projects" must be stricken down
making, or (b) ascertaining facts to bring the law into actual operation, referred to as contingent as unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 – it
rule-making.246 There are two (2) fundamental tests to ensure that the legislative guidelines for lies independently unfettered by any sufficient standard of the delegating law. As they are
delegated rule-making are indeed adequate. The first test is called the "completeness test." Case severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally
law states that a law is complete when it sets forth therein the policy to be executed, carried out, effective and subsisting.
or implemented by the delegate. On the other hand, the second test is called the "sufficient D. Ancillary Prayers. 1.
standard test." Jurisprudence holds that a law lays down a sufficient standard when it provides Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
adequate guidelines or limitations in the law to map out the boundaries of the delegate‘s authority Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did
and prevent the delegation from running riot.247 To be sufficient, the standard must specify the so in the context of its pronouncements made in this Decision – petitioners equally pray that the
limits of the delegate‘s authority, announce the legislative policy, and identify the conditions under Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
which it is to be implemented.248 complete schedule/list of legislators who have availed of their PDAF and VILP from the years
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other 2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
undue delegation of legislative power insofar as it does not lay down a sufficient standard to Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya
adequately determine the limits of the President‘s authority with respect to the purpose for which Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or
the Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude activity and the recipient entities or individuals, and all pertinent data thereto"255 (Presidential
to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to Pork Use Report). Petitioners‘ prayer is grounded on Section 28, Article II and Section 7, Article III
unilaterally appropriate public funds beyond the purview of the law. That the subject phrase may of the 1987 Constitution which read as follows:
be confined only to "energy resource development and exploitation programs and projects of the ARTICLE II
government" under the principle of ejusdem generis, meaning that the general word or phrase is to Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
be construed to include – or be restricted to – things akin to, resembling, or of the same kind or policy of full public disclosure of all its transactions involving public interest.
class as those specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy ARTICLE III Sec. 7.

66
The right of the people to information on matters of public concern shall be recognized. Access to to the documents sought for by the latter, subject, however, to the custodian‘s reasonable
official records, and to documents and papers pertaining to official acts, transactions, or decisions, regulations,viz.:259
as well as to government research data used as basis for policy development, shall be afforded In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
the citizen, subject to such limitations as may be provided by law. subject to reasonable regulations that the latter may promulgate relating to the manner and hours
The Court denies petitioners‘ submission. of examination, to the end that damage to or loss of the records may be avoided, that undue
Case law instructs that the proper remedy to invoke the right to information is to file a petition for interference with the duties of the custodian of the records may be prevented and that the right of
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256 other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
While the manner of examining public records may be subject to reasonable regulation by the supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and
government agency in custody thereof, the duty to disclose the information of public concern, and third alternative acts sought to be done by petitioners, is meritorious.
to afford access to public records cannot be discretionary on the part of said agencies. Certainly, However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the "to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
agency discretion. The constitutional duty, not being discretionary, its performance may be election thru the intercession/marginal note of the then First Lady Imelda Marcos."
compelled by a writ of mandamus in a proper case. The Court, therefore, applies the same treatment here.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be 2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
The decisive question on the propriety of the issuance of the writ of mandamus in this case is, Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee. proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
(Emphases supplied) Executive‘s Social Funds."260
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
right to information does not include the right to compel the preparation of "lists, abstracts, generally left to the prerogative of the political branches of government. Hence, lest the Court itself
summaries and the like." In the same case, it was stressed that it is essential that the "applicant overreach, it must equally deny their prayer on this score.
has a well -defined, clear and certain legal right to the thing demanded and that it is the imperative 3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
duty of defendant to perform the act required." Hence, without the foregoing substantiations, the The final issue to be resolved stems from the interpretation accorded by the DBM to the concept
Court cannot grant a particular request for information. The pertinent portions of Valmonte are of released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release
hereunder quoted:258 of the remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8
Although citizens are afforded the right to information and, pursuant thereto, are entitled to dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
"access to official records," the Constitution does not accord them a right to compel custodians of 3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
official records to prepare lists, abstracts, summaries and the like in their desire to acquire Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
information on matters of public concern. implementing agencies prior to the issuance of the TRO, may continually be implemented and
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well- disbursements thereto effected by the agencies concerned.
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of Based on the text of the foregoing, the DBM authorized the continued implementation and
defendant to perform the act required. The corresponding duty of the respondent to perform the disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November SARO had been obligated by the implementing agency concerned prior to the issuance of the
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443. Court‘s September 10, 2013 TRO.
The request of the petitioners fails to meet this standard, there being no duty on the part of Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
respondent to prepare the list requested. (Emphases supplied) yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
In these cases, aside from the fact that none of the petitions are in the nature of mandamus Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and certain obligated SARO, should remain enjoined.
legal right" to be furnished by the Executive Secretary and/or the DBM of their requested PDAF For their part, respondents espouse that the subject TRO only covers "unreleased and
Use Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or unobligated allotments." They explain that once a SARO has been issued and obligated by the
administrative issuance which would form the bases of the latter‘s duty to furnish them with the implementing agency concerned, the PDAF funds covered by the same are already "beyond the
documents requested. While petitioners pray that said information be equally released to the CoA, reach of the TRO because they cannot be considered as ‘remaining PDAF.‘" They conclude that
it must be pointed out that the CoA has not been impleaded as a party to these cases nor has it this is a reasonable interpretation of the TRO by the DBM.262
filed any petition before the Court to be allowed access to or to compel the release of any official The Court agrees with petitioners in part.
document relevant to the conduct of its audit investigations. While the Court recognizes that the At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013
information requested is a matter of significant public concern, however, if only to ensure that the TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
parameters of disclosure are properly foisted and so as not to unduly hamper the equally the 2013 PDAF Article as declared herein has the consequential effect of converting the
important interests of the government, it is constrained to deny petitioners‘ prayer on this score, temporary injunction into a permanent one. Hence, from the promulgation of this Decision, the
without prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue release of the remaining PDAF funds for 2013, among others, is now permanently enjoined.
through a separate petition. The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be resolved as it has a practical impact on the execution of the current Decision. In particular, the
furnished with such schedule/list and report and not in any way deny them, or the general public, Court must resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the
access to official documents which are already existing and of public record. Subject to time this Decision is promulgated, may still be disbursed following the DBM‘s interpretation in
reasonable regulation and absent any valid statutory prohibition, access to these documents DBM Circular 2013-8.
should not be proscribed. Thus, in Valmonte, while the Court denied the application for mandamus On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
towards the preparation of the list requested by petitioners therein, it nonetheless allowed access covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur

67
obligations not exceeding a given amount during a specified period for the purpose indicated. It For these reasons, this Decision should be heretofore applied prospectively.
shall cover expenditures the release of which is subject to compliance with specific laws or Conclusion
regulations, or is subject to separate approval or clearance by competent authority."263 The Court renders this Decision to rectify an error which has persisted in the chronicles of our
Based on this definition, it may be gleaned that a SARO only evinces the existence of an history. In the final analysis, the Court must strike down the Pork Barrel System as
obligation and not the directive to pay. Practically speaking, the SARO does not have the direct unconstitutional in view of the inherent defects in the rules within which it operates. To recount,
and immediate effect of placing public funds beyond the control of the disbursing authority. In fact, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment
a SARO may even be withdrawn under certain circumstances which will prevent the actual release authority in vital areas of budget execution, the system has violated the principle of separation of
of funds. On the other hand, the actual release of funds is brought about by the issuance of the powers; insofar as it has conferred unto legislators the power of appropriation by giving them
NCA,264 which is subsequent to the issuance of a SARO. As may be determined from the personal, discretionary funds from which they are able to fund specific projects which they
statements of the DBM representative during the Oral Arguments:265 themselves determine, it has similarly violated the principle of non-delegability of legislative power
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO? ; insofar as it has created a system of budgeting wherein items are not textualized into the
xxxx appropriations bill, it has flouted the prescribed procedure of presentment and, in the process,
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to denied the President the power to veto items ; insofar as it has diluted the effectiveness of
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it comes of governance which they may be called to monitor and scrutinize, the system has equally
after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized government- impaired public accountability ; insofar as it has authorized legislators, who are national officers, to
disbursing banks to, therefore, pay the payees depending on the projects or projects covered by intervene in affairs of purely local nature, despite the existence of capable local institutions, it has
the SARO and the NCA. likewise subverted genuine local autonomy ; and again, insofar as it has conferred to the
Justice Bernabe: Are there instances that SAROs are cancelled or revoked? President the power to appropriate funds intended by law for energy-related purposes only to
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs other purposes he may deem fit as well as other public funds under the broad classification of
issued are withdrawn by the DBM. "priority infrastructure development projects," it has once more transgressed the principle of non-
Justice Bernabe: They are withdrawn? delegability.
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied) For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
Thus, unless an NCA has been issued, public funds should not be treated as funds which have methods and mechanisms the Court has herein pointed out should never again be adopted in any
been "released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only system of governance, by any name or form, by any semblance or similarity, by any influence or
covered by obligated SAROs, and without any corresponding NCAs issued, must, at the time of effect. Disconcerting as it is to think that a system so constitutionally unsound has monumentally
this Decision’s promulgation, be enjoined and consequently reverted to the unappropriated surplus endured, the Court urges the people and its co-stewards in government to look forward with the
of the general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the optimism of change and the awareness of the past. At a time of great civic unrest and vociferous
funds appropriated pursuant thereto cannot be disbursed even though already obligated, else the public debate, the Court fervently hopes that its Decision today, while it may not purge all the
Court sanctions the dealing of funds coming from an unconstitutional source. wrongs of society nor bring back what has been lost, guides this nation to the path forged by the
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been Constitution so that no one may heretofore detract from its cause nor stray from its course. After
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and all, this is the Court‘s bounden duty and no other‘s.
for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
PD 910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws,
PD 1993, which were altogether declared by the Court as unconstitutional. However, these funds such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
should not be reverted to the general fund as afore-stated but instead, respectively remain under authorize/d legislators – whether individually or collectively organized into committees – to
the Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding intervene, assume or participate in any of the various post-enactment stages of the budget
special purposes not otherwise declared as unconstitutional. execution, such as but not limited to the areas of project identification, modification and revision of
E. Consequential Effects of Decision. project identification, fund release and/or fund realignment, unrelated to the power of
As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel
of (a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions,
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be which confer/red personal, lump-sum allocations to legislators from which they are able to fund
hereafter directed by the President" under Section 8 of PD 910, and (2) "to finance the priority specific projects which they themselves determine; (d) all informal practices of similar import and
infrastructure development projects" under Section 12 of PD 1869, as amended by PD 1993, must effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack
only be treated as prospective in effect in view of the operative fact doctrine. or excess of jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the
appropriate case, declares the invalidity of a certain legislative or executive act, such act is priority infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as
presumed constitutional and thus, entitled to obedience and respect and should be properly amended by Presidential Decree No. 1993, for both failing the sufficient standard test in violation
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue of the principle of non-delegability of legislative power.
v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that precisely Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
because the judiciary is the governmental organ which has the final say on whether or not a PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the
legislative or executive measure is valid, a period of time may have elapsed before it can exercise year 2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds
the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law under the phrase "and for such other purposes as may be hereafter directed by the President"
of its quality of fairness and justice then, if there be no recognition of what had transpired prior to pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under
such adjudication."267 "In the language of an American Supreme Court decision: ‘The actual the phrase "to finance the priority infrastructure development projects" pursuant to Section 12 of
existence of a statute, prior to such a determination of unconstitutionality, is an operative fact and Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the
may have consequences which cannot justly be ignored.‘"268 time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by

68
Special Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The See Concurring Opinion
remaining PDAF funds covered by this permanent injunction shall not be disbursed/released but MARVIC MARIO VICTOR F. LEONEN
instead reverted to the unappropriated surplus of the general fund, while the funds under the Associate Justice
Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for their CERTIFICATION
respective special purposes not otherwise declared as unconstitutional. I certify that the conclusions in the above Decision had been reached in consultation before the
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby cases were assigned to the writer of the opinion of the Court.
DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget MARIA LOURDES P. A. SERENO
and Management be ordered to provide the public and the Commission on Audit complete Chief Justice
lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners‘ access to official documents already available and of public record which Footnotes
are related to these funds must, however, not be prohibited but merely subjected to the *Dropped as a party per Memorandum dated October 17, 2013 filed by counsel for petitioners
custodian‘s reasonable regulations or any valid statutory prohibition on the same. This denial is Atty. Alfredo B. Molo III, et al. Rollo (G.R. No. 208566), p. 388.
without prejudice to a proper mandamus case which they or the Commission on Audit may choose ** No part.
to pursue through a separate petition. 1 The Federalist Papers, Federalist No. 20.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these 2 Rollo (G.R. No. 208566), pp. 3-51; rollo (G.R. No. 208493), pp. 3-11; and rollo (G.R. No.
cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative of 209251), pp. 2-8.
the political branches of government. 3 "’Pork barrel spending,‘ a term that traces its origins back to the era of slavery before the U.S.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the Civil War, when slave owners occasionally would present a barrel of salt pork as a gift to their
bounds of reasonable dispatch, investigate and accordingly prosecute all government officials slaves. In the modern usage, the term refers to congressmen scrambling to set aside money for
and/or private individuals for possible criminal offenses related to the irregular, improper and/or pet projects in their districts." (Drudge, Michael W. "’Pork Barrel‘ Spending Emerging as
unlawful disbursement/utilization of all funds under the Pork Barrel System. Presidential Campaign Issue," August 1, 2008
This Decision is immediately executory but prospective in effect. http://iipdigital.usembassy.gov/st/english/article/2008/08/20080801181504lcnirellep
SO ORDERED. 0.1261713.html#axzz2iQrI8mHM> [visited October 17, 2013].)
ESTELA M. PERLAS-BERNABE 4 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A
Associate Justice Commentary, 2003 Edition, p. 786, citing Bernas, "From Pork Barrel to Bronze Caskets," Today,
WE CONCUR: January 30, 1994.
See Concurring Opinion 5 Heaser, Jason, "Pulled Pork: The Three Part Attack on Non-Statutory Earmarks," Journal of
MARIA LOURDES P. A. SERENO Legislation, 35 J. Legis. 32 (2009). <http://heinonline.org/HOL/LandingPage?collection=&handle
Chief Justice =hein.journals/jleg35&div=6&id=&page=> (visited October 17, 2013).
See Concurring Opinion 6 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines,
ANTONIO T. CARPIO "Understanding the ‘Pork Barrel,‘" p. 2.
Associate Justice <http://www.congress.gov.ph/download/14th/pork_barrel.pdf> (visited October 17, 2013).
NO PART 7 Chua, Yvonne T. and Cruz, Booma, B., "Pork is a Political, Not A Developmental, Tool."
PRESBITERO J. VELASCO, JR. <http://pcij.org/stories/2004/pork.html> [visited October 22, 2013].) See also rollo (G.R. No.
Associate Justice 208566), pp. 328-329.
I concur and also join the concurring opinion of Justice Carpio. 8 Morton, Jean, "What is a Pork Barrel?" Global Granary, Lifestyle Magazine and Common Place
TERESITA J. LEONARDO-DE CASTRO Book Online: Something for Everyone, August 19, 2013.
Associate Justice <http://www.globalgranary.org/2013/08/19/what-is-a-pork-barrel/#.UnrnhFNavcw > (visited
I join the Opinion of Justice Carpio, subject to my Concurring & Dissenting Opinion. October 17, 2013).
ARTURO D. BRION 9 Jison, John Raymond, "What does the 'pork barrel' scam suggest about the Philippine
Associate Justice government?" International Association for Political Science Students, September 10, 2013.
DIOSDADO M. PERALTA <http://www.iapss.org/ index.php/articles/item/93-what-does-the-pork-barrel-scam-suggest-about-
Associate Justice the-philippine-government> (visited October 17, 2013). See also Llanes, Jonathan, "Pork barrel –
LUCAS P. BERSAMIN Knowing the issue," Sunstar Baguio, October 23, 2013. <http://www.sunstar.com.ph/
Associate Justice baguio/opinion/2013/09/05/llanes-pork- barrel-knowing-issue-301598> (visited October 17, 2013).
MARIANO C. DEL CASTILLO 10 Entitled "AN ACT MAKING APPROPRIATIONS FOR PUBLIC WORKS," approved on March
Associate Justice 10, 1922.
I join the concurring opinion of J. A.T. Carpio of the ponencia 11 "Act 3044, the first pork barrel appropriation, essentially divided public works projects into two
ROBERTO A. ABAD types. The first type—national and other buildings, roads and bridges in provinces, and
Associate Justice lighthouses, buoys and beacons, and necessary mechanical equipment of lighthouses—fell
MARTIN S. VILLARAMA, JR. directly under the jurisdiction of the director of public works, for which his office received
Associate Justice appropriations. The second group—police barracks, normal school and other public buildings, and
JOSE PORTUGAL PEREZ certain types of roads and bridges, artesian wells, wharves, piers and other shore protection
Associate Justice works, and cable, telegraph, and telephone lines—is the forerunner of the infamous pork barrel.
JOSE CATRAL MENDOZA Although the projects falling under the second type were to be distributed at the discretion of the
Associate Justice secretary of commerce and communications, he needed prior approval from a joint committee
BIENVENIDO L. REYES elected by the Senate and House of Representatives. The nod of either the joint committee or a
Associate Justice committee member it had authorized was also required before the commerce and communications

69
secretary could transfer unspent portions of one item to another item." (Emphases supplied) Representatives, ₱12,500,000 each; Senators ₱18,000,000 each; Vice-President, ₱20,000,000;
(Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. PROVIDED, That, the said credit facilities shall be constituted as a revolving fund to be
<http://verafiles.org/pork-by-any-name/> [visited October 14, 2013]). administered by a government financial institution (GFI) as a trust fund for lending operations.
12 Sec. 3. The sums appropriated in paragraphs (c), (g), (l), and (s) of this Act shall be available Prior years releases to local government units and national government agencies for this purpose
for immediate expenditure by the Director of Public Works, but those appropriated in the other shall be turned over to the government financial institution which shall be the sole administrator of
paragraphs shall be distributed in the discretion of the Secretary of Commerce and credit facilities released from this fund.
Communications, subject to the approval of a joint committee elected by the Senate and the The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of
House of Representatives. The committee from each House may authorize one of its members to Cash Allocation directly to the assigned implementing agency not later than five (5) days after the
approve the distribution made by the Secretary of Commerce and Communications, who with the beginning of each quarter upon submission of the list of projects and activities by the officials
approval of said joint committee, or of the authorized members thereof may, for the purposes of concerned. (Emphases supplied)
said distribution, transfer unexpended portions of any item of appropriation. (Emphases supplied) 31 Special Provision 1, Article XLII, RA 7845 (1995 CDF Article) provides:
13 Those Section 1 (c), (g), (l), and (s) of Act 3044 "shall be available for immediate expenditure Special Provisions
by the Director of Public Works." 1. Use and Release of Funds.
14 Section 3, Act 3044. The amount herein appropriated shall be used for infrastructure, purchase of equipment and other
15 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. priority projects and activities as proposed and identified by officials concerned according to the
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013). following allocations: Representatives, ₱12,500,000 each; Senators ₱18,000,000 each; Vice-
16 Id. President, ₱20,000,000.
17 Id. The fund shall be automatically released semi-annually by way of Advice of Allotment and Notice
18 Id. of Cash Allocation directly to the designated implementing agency not later than five (5) days after
19 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, the beginning of each semester upon submission of the list of projects and activities by the
"Understanding the ‘Pork Barrel,‘" <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf > officials concerned. (Emphases supplied)
(visited October 17, 2013). 32 Special Provision 1, Article XLII, RA 8174 (1996 CDF Article) provides:
20 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. Special Provisions
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013). 1. Use and Release of Fund.
21 Id. The amount herein appropriated shall be used for infrastructure, purchase of equipment and other
22 Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local priority projects and activities, including current operating expenditures, except creation of new
Projects (VILP), Special Audits Office Report No. 2012-03, August 14, 2013 (CoA Report), p. 2. plantilla positions, as proposed and identified by officials concerned according to the following
23 Ilagan, Karol, "Data A Day; CIA, CDF, PDAF? Pork is pork is pork," Moneypolitics, A Date allocations: Representatives, Twelve Million Five Hundred Thousand Pesos (₱12,500,000) each;
Journalism Project for the Philippine Center for Investigative Journalism, August 1, 2013 Senators, Eighteen Million Pesos (₱18,000,000) each; Vice-President, Twenty Million Pesos
<http://moneypolitics.pcij.org/data-a-day/cia-cdf-pdaf-pork-is-pork-is-pork/> (visited October 14, (₱20,000,000).
2013). The Fund shall be released semi-annually by way of Special Allotment Release Order and Notice
24 Republic Act No. (RA) 6831. of Cash Allocation directly to the designated implementing agency not later than thirty (30) days
25 Special Provision 1, Article XLIV, RA 7078 (1991 CDF Article), and Special Provision 1, Article after the beginning of each semester upon submission of the list of projects and activities by the
XLII (1992), RA 7180 (1992 CDF Article) are similarly worded as follows: Special Provision 1. officials concerned. (Emphases supplied)
Use and Release of Funds. The amount herein appropriated shall be used for infrastructure and 33 Special Provision 2 of the 1994 CDF Article, Special Provision 2 of the 1995 CDF Article and
other priority projects and activities upon approval by the President of the Philippines and shall be Special Provision 2 of the 1996 CDF Article are similarly worded as follows:
released directly to the appropriate implementing agency [(x x x for 1991)], subject to the 2. Submission of [Quarterly (1994)/Semi-Annual (1995 and 1996)] Reports. The Department of
submission of the required list of projects and activities. (Emphases supplied) Budget and Management shall submit within thirty (30) days after the end of each [quarter
26 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. (1994)/semester (1995 and 1996)] a report to the House Committee on Appropriations and the
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013). Senate Committee on Finance on the releases made from this Fund. The report shall include the
27 Id. listing of the projects, locations, implementing agencies [stated (order of committees interchanged
28 Special Provision 1, Article XXXVIII, RA 7645 (1993 CDF Article) provides: in 1994 and 1996)] and the endorsing officials. (Emphases supplied)
Special Provision 34 Special Provision 2, Article XLII, RA 8250 (1997 CDF Article) provides:
1. Use and Release of Funds. Special Provisions
The amount herein appropriated shall be used for infrastructure and other priority projects and xxxx
activities as proposed and identified by officials concerned according to the following allocations: 2. Publication of Countrywide Development Fund Projects. Within thirty (30) days after the signing
Representatives, ₱12,500,000 each; Senators ₱18,000,000 each; Vice-President, ₱20,000,000. of this Act into law, the Members of Congress and the Vice-President shall, in consultation with the
The fund shall be automatically released quarterly by way of Advice of Allotment and Notice of implementing agency concerned, submit to the Department of Budget and Management the list of
Cash Allocation directly to the assigned implementing agency not later than five (5) days after the fifty percent (50%) of projects to be funded from the allocation from the Countrywide Development
beginning of each quarter upon submission of the list of projects and activities by the officials Fund which shall be duly endorsed by the Senate President and the Chairman of the Committee
concerned. (Emphases supplied) on Finance in the case of the Senate and the Speaker of the House of Representatives and the
29 See Special Provision 1, 1993 CDF Article; id. Chairman of the Committee on Appropriations in the case of the House of Representatives, and
30 Special Provision 1, Article XLI, RA 7663 (1994 CDF Article) provides: the remaining fifty percent (50%) within six (6) months thereafter. The list shall identify the specific
Special Provisions projects, location, implementing agencies, and target beneficiaries and shall be the basis for the
1. Use and Release of Funds. release of funds. The said list shall be published in a newspaper of general circulation by the
The amount herein appropriated shall be used for infrastructure, purchase of ambulances and Department of Budget and Management. No funds appropriated herein shall be disbursed for
computers and other priority projects and activities, and credit facilities to qualified beneficiaries as projects not included in the list herein required. (Emphases supplied)
proposed and identified by officials concerned according to the following allocations: 35 See Special Provision 2, 1997 CDF Article; id.

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36 Special Provision 2, Article XLII, RA 8522 (1998 CDF Article) provides: Special Provision
Special Provisions 1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority
xxxx programs and projects or to fund the required counterpart for foreign-assisted programs and
2. Publication of Countrywide Development Fund Projects. x x x PROVIDED, That said publication projects: PROVIDED, That such amount shall be released directly to the implementing agency or
is not a requirement for the release of funds. x x x x (Emphases supplied) Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein
37 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. may be realigned to any expense class, if deemed necessary: PROVIDED, FURTHERMORE,
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013). That a maximum of ten percent (10%) of the authorized allocations by district may be used for the
38 Id. procurement of rice and other basic commodities which shall be purchased from the National
49 Rollo (G.R. No. 208566), pp. 335-336, citing Parreño, Earl, "Perils of Pork," Philippine Center Food Authority.
for Investigative Journalism, June 3-4, 1998. Available at <http://pcij.org/stories/1998/pork.html> 51 Special Provision 1, Article XVIII, RA 9206 provides:
40 Id. Special Provision No. 1 – Restriction on the Delegation of Project Implementation The
41 Id. implementation of the projects funded herein shall not be delegated to other agencies, except
42 RA 8745 entitled "AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE those projects to be implemented by the Engineering Brigades of the AFP and inter-department
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE TO projects undertaken by other offices and agencies including local government units with
DECEMBER THIRTY ONE, NINETEEN HUNDRED NINETY NINE, AND FOR OTHER demonstrated capability to actually implement the projects by themselves upon consultation with
PURPOSES." the Members of Congress concerned. In all cases the DPWH shall exercise technical supervision
43 Special Provision 1, Article XLII, Food Security Program Fund, RA 8745 provides: over projects. (Emphasis supplied)
Special Provision 52 Special Provision 3, Article XLII, RA 9206 provides:
1. Use and Release of Fund. The amount herein authorized shall be used to support the Food Special Provision No. 3 – Submission of the List of School Buildings Within 30 days after the
Security Program of the government, which shall include farm-to-market roads, post harvest signing of this Act into law, (DepEd) after consultation with the representative of the legislative
facilities and other agricultural related infrastructures. Releases from this fund shall be made district concerned, shall submit to DBM the list of 50% of school buildings to be constructed every
directly to the implementing agency subject to prior consultation with the Members of Congress municipality x x x. The list as submitted shall be the basis for the release of funds. (Emphasis
concerned. (Emphases supplied) supplied)
44 Special Provision 1, Article XLIX, 53 Rollo (G.R. No. 208566), p. 557.
Lingap Para sa Mahihirap 54 Special Provision 1, Article L, RA 9336 (2005 PDAF Article) provides:
Program Fund, RA 8745 provides: Special Provision(s)
Special Provision 1. Use and Release of the Fund. The amount appropriated herein shall be used to fund priority
1. Use and Release of Fund. The amount herein appropriated for the Lingap Para sa Mahihirap programs and projects under the ten point agenda of the national government and shall be
Program Fund shall be used exclusively to satisfy the minimum basic needs of poor communities released directly to the implementing agencies as indicated hereunder, to wit:
and disadvantaged sectors: PROVIDED, That such amount shall be released directly to the PARTICULARS
implementing agency upon prior consultation with the Members of Congress concerned. PROGRAM/PROJECT
(Emphases supplied) IMPLEMENTING
45 Special Provision 1, Article L, Rural/Urban Development Infrastructure Program Fund, RA 8745 AGENCY
provides: A. Education
Special Provision Purchase of IT Equipment
1. Use and Release of Fund. The amount herein authorized shall be used to fund infrastructure DepEd/TESDA/ CHED/SUCs/LGUs
requirements of the rural/urban areas which shall be released directly to the implementing agency
upon prior consultation with the respective Members of Congress. (Emphases supplied) Scholarship
46 Special Provision 1, Article XLIX, RA 8760 (2000 PDAF Article) provides: TESDA/CHED/
Special Provision SUCs/LGUs
1. Use and release of the Fund. The amount herein appropriated shall be used to fund priority B. Health
programs and projects as indicated under Purpose 1: PROVIDED, That such amount shall be Assistance to Indigent Patients Confined at the Hospitals Under DOH Including Specialty
released directly to the implementing agency concerned upon prior consultation with the Hospitals
respective Representative of the District: PROVIDED, FURTHER, That the herein allocation may DOH/Specialty
be realigned as necessary to any expense category: PROVIDED, FINALLY, That no amount shall Hospitals
be used to fund personal services and other personal benefits. (Emphases supplied)
47 See Special Provision 1, 2000 PDAF Article; id. Assistance to Indigent Patients at the Hospitals Devolved to LGUs and RHUs
48 Section 25 (7), Article VI, of the 1987 Philippine Constitution (1987 Constitution) provides that LGUs
"if, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations
bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be Insurance Premium
deemed reenacted and shall remain in force and effect until the general appropriations bill is Philhealth
passed by the Congress." (Emphasis supplied) C. Livelihood/ CIDSS
49 Special Provision 1, Article L, RA 9162 (2002 PDAF Article) provides: Small & Medium Enterprise/Livelihood
1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority DTI/TLRC/DA/CDA
programs and projects or to fund counterpart for foreign-assisted programs and projects:
PROVIDED, That such amount shall be released directly to the implementing agency or Local Comprehensive Integrated Delivery of Social Services
Government Unit concerned. (Emphases supplied) DSWD
50 Special Provision 1, Article XLVII, RA 9206, 2003 GAA (2003 PDAF Article) provides: D. Rural Electrification

71
Barangay/Rural Electrification public procurement, having due regard to the country's regional and international obligations; 2. To
DOE/NEA formulate and amend public procurement policies, rules and regulations, and amend, whenever
E. Water Supply necessary, the implementing rules and regulations Part A (IRR-A); 3. To prepare a generic
Construction of Water System procurement manual and standard bidding forms for procurement; 4. To ensure the proper
DPWH implementation by the procuring entities of the Act, its IRR-A and all other relevant rules and
regulations pertaining to public procurement; 5. To establish a sustainable training program to
Installation of Pipes/Pumps/Tanks develop the capacity of Government procurement officers and employees, and to ensure the
LGUs conduct of regular procurement training programs by the procuring entities; and 6. To conduct an
F. Financial Assistance annual review of the effectiveness of the Act and recommend any amendments thereto, as may
Specific Programs and Projects to Address the Pro-Poor Programs of Government be necessary.
LGUs x x x x" <http://www.gppb.gov.ph/about_us/gppb.html> (visited October 23, 2013).
G. Public Work 65 Entitled "AMENDMENT OF SECTION 53 OF THE IMPLEMENTING RULES AND
Construction/Repair/ Rehabilitation of the following: Roads and Bridges/Flood Control/School REGULATIONS PART A OF REPUBLIC ACT 9184 AND PRESCRIBING GUIDELINES ON
buildings Hospitals Health Facilities/Public Markets/Multi-Purpose Buildings/Multi-Purpose PARTICIPATION OF NON-GOVERNMENTAL ORGANIZATIONS IN PUBLIC PROCUREMENT,"
Pavements approved June 29, 2007.
DPWH 66 Entitled "AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND
H. Irrigation REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR
Construction/Repair/ Rehabilitation of Irrigation Facilities OTHER PURPOSES."
DA-NIA 67 Sec. 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity
(Emphasis supplied) or his duly authorized representative, and whenever justified by the conditions provided in this Act,
55 Id. the Procuring Entity may, in order to promote economy and efficiency, resort to any of the
56 Rollo (G.R. No. 208566), p. 558. following alternative methods of Procurement:
57 See Special Provision 1, Article XLVII, RA 9401. xxxx
58 See Special Provision 1, Article XLVI, RA 9498. (e) Negotiated Procurement - a method of Procurement that may be resorted under the
59 See Special Provision 1, Article XLIX, RA 9524. extraordinary circumstances provided for in Section 53 of this Act and other instances that shall be
60 See Special Provision 1, Article XLVII, RA 9970. specified in the IRR, whereby the Procuring Entity directly negotiates a contract with a technically,
61 For instance, Special Provisions 2 and 3, Article XLIII, RA 9336 providing for the 2005 DepEd legally and financially capable supplier, contractor or consultant.
School Building Program, and Special Provisions 1 and 16, Article XVIII, RA 9401 providing for the xxxx
2007 DPWH Regular Budget respectively state: 2005 DepEd School Building Program Special 68 As defined in Section 5(o) of RA 9184, the term "Procuring Entity" refers to any branch,
Provision No. 2 – Allocation of School Buildings: The amount allotted under Purpose 1 shall be department, office, agency, or instrumentality of the government, including state universities and
apportioned as follows: (1) fifty percent (50%) to be allocated pro-rata according to each legislative colleges, government-owned and/or - controlled corporations, government financial institutions,
districts student population x x x; (2) forty percent (40%) to be allocated only among those and local government units procuring Goods, Consulting Services and Infrastructure Projects.
legislative districts with classroom shortages x x x; (3) ten percent (10%) to be allocated in 69 Rollo (G.R. No. 208566), p. 564, citing GPPB Resolution 12-2007.
accordance x x x. 70 Special Provision 2, Article XLIV, RA 10147 (2011 PDAF Article) provides:
Special Provision No. 3 – Submission of the List of School Buildings: Within 30 days after the 2. Allocation of Funds. The total projects to be identified by legislators and the Vice-President shall
signing of this Act into law, the DepEd after consultation with the representative of the legislative not exceed the following amounts:
districts concerned, shall submit to DBM the list of fifty percent (50%) of school buildings to be a. Total of Seventy Million Pesos (₱70,000,000) broken down into Forty Million Pesos
constructed in every municipality x x x. The list as submitted shall be the basis for the release of (₱40,000,000) for Infrastructure Projects and Thirty Million Pesos (₱30,000,000) for soft projects
funds x x x. (Emphases supplied) of Congressional Districts or Party List Representatives;
2007 DPWH Regular Budget b. Total of Two Hundred Million Pesos (₱200,000,000) broken down into One Hundred Million
Special Provision No. 1 – Restriction on Delegation of Project Implementation: The Pesos (₱100,000,000) for Infrastructure Projects and One Hundred Million Pesos (₱100,000,000)
implementation of the project funded herein shall not be delegated to other agencies, except those for soft projects of Senators and the Vice President.
projects to be implemented by the AFP Corps of Engineers, and inter-department projects to be 71 See Special Provision 4, 2011 PDAF Article.
undertaken by other offices and agencies, including local government units (LGUs) with 72 Special Provision 2, Article XLIV, RA 10155 (2012 PDAF Article) provides: 2. Project
demonstrated capability to actually implement the project by themselves upon consultation with Identification. Identification of projects and/or designation of beneficiaries shall conform to the
the representative of the legislative district concerned x x x. priority list, standard or design prepared by each implementing agency. Furthermore, preference
Special Provision No. 16 – Realignment of Funds: The Secretary of Public Works and Highways is shall be given to projects located in the 4th to 6th class municipalities or indigents identified under
authorized to realign funds released from appropriations x x x from one project/scope of work to the National Household Targeting System for Poverty Reduction by the DSWD.
another: PROVIDED, that x x x (iii) the request is with the concurrence of the legislator concerned For this purpose, the implementing agency shall submit to Congress said priority list, standard or
x x x. (Emphasis supplied) design within ninety (90) days from effectivity of this Act. (Emphasis supplied)
62 Rollo (G.R. No. 208566) , p. 559, citing Section 2.A of RA 9358, otherwise known as the 73 RA 10352, passed and approved by Congress on December 19, 2012 and signed into law by
"Supplemental Budget for 2006." the President on December 19, 2012. Special Provision 2, Article XLIV, RA 10352 (2013 PDAF
63 Id. at 559-560. Article) provides:
64 "As a primary aspect of the Philippine Government's public procurement reform agenda, the 2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform
Government Procurement Policy Board (GPPB) was established by virtue of Republic Act No. to the priority list, standard or design prepared by each implementing agency: PROVIDED, That
9184 (R.A. 9184) as an independent inter-agency body that is impartial, transparent and effective, preference shall be given to projects located in the 4th to 6th class municipalities or indigents
with private sector representation. As established in Section 63 of R.A. 9184, the GPPB shall have identified under the NHTS-PR by the DSWD. For this purpose, the implementing agency shall
the following duties and responsibilities: 1. To protect national interest in all matters affecting

72
submit to Congress said priority list, standard or design within ninety (90) days from effectivity of 80 Sec. 8.
this Act. (Emphasis supplied) Appropriations. The sum of Five Million Pesos out of any available funds from the National
74 The permissive treatment of the priority list requirement in practice was revealed during the Treasury is hereby appropriated and authorized to be released for the organization of the Board
Oral Arguments (TSN, October 10, 2013, p. 143): and its initial operations. Henceforth, funds sufficient to fully carry out the functions and objectives
Justice Leonen: x x x In Section 2 meaning, Special Provision 2, it mentions priority list of of the Board shall be appropriated every fiscal year in the General Appropriations Act.
implementing agencies. Have the implementing agencies indeed presented priority list to the All fees, revenues and receipts of the Board from any and all sources including receipts from
Members of Congress before disbursement? service contracts and agreements such as application and processing fees, signature bonus,
Solicitor General Jardeleza: My understanding is, is not really, Your Honor. Justice Leonen: So, in discovery bonus, production bonus; all money collected from concessionaires, representing
other words, the PDAF was expended without the priority list requirements of the implementing unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
agencies? government share representing royalties, rentals, production share on service contracts and
Solicitor General Jardeleza: That is so much in the CoA Report, Your Honor. similar payments on the exploration, development and exploitation of energy resources, shall form
75 See Special Provision 3 of the 2012 PDAF Article and Special Provision 3 of the 2013 PDAF part of a Special Fund to be used to finance energy resource development and exploitation
Article. programs and projects of the government and for such other purposes as may be hereafter
76 Special Provision 6 of the 2012 PDAF Article provides: directed by the President. (Emphasis supplied)
6. Realignment of Funds. Realignment under this Fund may only be allowed once. The 81 Entitled "CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND
Secretaries of Agriculture, Education, Energy, Environment and Natural Resources, Health, FUNCTIONS, PROVIDING FUNDS, THEREFOR, AND FOR OTHER PURPOSES."
Interior and Local Government, Public Works and Highways, and Social Welfare and Development 82 See First Whereas Clause of PD 910.
are also authorized to approve realignment from one project/scope to another within the allotment 83 See <http://malampaya.com/> (visited October 17, 2013).
received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within 84 Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax,
the same implementing unit and same project category as the original project; (ii) allotment the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
released has not yet been obligated for the original project/scope of work; and (iii) request is with Corporation from this Franchise shall be immediately set aside and allocated to fund the following
the concurrence of the legislator concerned. The DBM must be informed in writing of any infrastructure and socio-civil projects within the Metropolitan Manila Area:
realignment approved within five (5) calendar days from its approval. (a) Flood Control
Special Provision 4 of the 2013 PDAF Article provides: (b) Sewerage and Sewage
4. Realignment of Funds. Realignment under this Fund may only be allowed once. The (c) Nutritional Control
Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and (d) Population Control
Employment, Public Works and Highways, Social Welfare and Development and Trade and (e) Tulungan ng Bayan Centers
Industry are also authorized to approve realignment from one project/scope to another within the (f) Beautification
allotment received from this Fund, subject to the following: (i) for infrastructure projects, (g) Kilusang Kabuhayan at Kaunlaran (KKK) projects; provided, that should the aggregate gross
realignment is within the same implementing unit and same project category as the original earning be less than ₱150,000,000.00, the amount to be allocated to fund the above-mentioned
project; (ii) allotment released has not yet been obligated for the original project/scope of work; project shall be equivalent to sixty (60%) percent of the aggregate gross earning.
and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in In addition to the priority infrastructure and socio-civic projects with the Metropolitan Manila
writing of any realignment approved within five (5) calendar days from approval thereof: specifically enumerated above, the share of the Government in the aggregate gross earnings
PROVIDED, That any realignment under this Fund shall be limited within the same classification derived by the Corporate from this Franchise may also be appropriated and allocated to fund and
of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, finance infrastructure and/or socio-civic projects throughout the Philippines as may be directed
That in case of realignments, modifications and revisions of projects to be implemented by LGUs, and authorized by the Office of the President of the Philippines.
the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been 85 Entitled "CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-
deposited back to the BTr. B, 1067-C, 1399 AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF THE
Any realignment, modification and revision of the project identification shall be submitted to the PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR)."
House Committee on Appropriations and the Senate Committee on Finance, for favorable 86 Entitled "AMENDING SECTION TWELVE OF PRESIDENTIAL DECREE NO. 1869-
endorsement to the DBM or the implementing agency, as the case may be. (Emphases supplied) CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C,
77 Special Provision 1 of the 2013 PDAF Article provides: 1399 AND 1632, R ELATIVE TO THE F RANCHISE AND POWERS OF THE PHILIPPINE
Special Provision(s) 1. Use of Fund. The amount appropriated herein shall be used to fund the AMUSEMENT AND G AMING CORPORATION (PAGCOR)." While the parties have confined their
following priority programs and projects to be implemented by the corresponding agencies: discussion to Section 12 of PD 1869, the Court takes judicial notice of its amendment and perforce
xxxx deems it apt to resolve the constitutionality of the amendatory provision.
PROVIDED, That this Fund shall not be used for the payment of Personal Services expenditures: 87 Section 12 of PD 1869, as amended by PD 1993, now reads:
PROVIDED, FURTHER, That all procurement shall comply with the provisions of R.A. No. 9184 Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax,
and its Revised Implementing Rules and Regulations: PROVIDED, FINALLY, That for the Fifty (50%) percent share of the government in the aggregate gross earnings of the
infrastructure projects, LGUs may only be identified as implementing agencies if they have the Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
technical capability to implement the same. (Emphasis supplied) ₱150,000,000.00 shall immediately be set aside and shall accrue to the General Fund to finance
78 Special Provision 2 of the 2013 PDAF Article provides: the priority infrastructure development projects and to finance the restoration of damaged or
2. Project Identification. x x x. destroyed facilities due to calamities, as may be directed and authorized by the Office of the
xxxx President of the Philippines.
All programs/projects, except for assistance to indigent patients and scholarships, identified by a 88 Rollo (G.R. No. 208566), p. 301.
member of the House of Representatives outside of his/her legislative district shall have the 89 CDF/PDAF ALLOCATION FROM 1990 -2013.
written concurrence of the member of the House of Representatives of the recipient or beneficiary 1990…………… ₱2,300,000,000.00
legislative district, endorsed by the Speaker of the House of Representatives. 1991…………… P 2,300,000,000.00
79 See Special Provision 4 of the 2013 PDAF Article; supra note 76. 1992…………… P 2,480,000,000.00

73
1993…………… P 2,952,000,000.00 Livelihood Resource Center (TLRC)/Technology Resource Center (TRC), National Livelihood
1994…………… P 2,977,000,000.00 Development Corporation (NLDC), National Agribusiness Corporation (NABCOR), and the
1995…………… P 3,002,000,000.00 Zamboanga del Norte Agricultural College (ZNAC) Rubber Estate Corporation (ZREC). CoA
1996…………… P 3,014,500,000.00 Chairperson‘s Memorandum. Rollo (G.R. No. 208566), p. 546. See also CoA Report, p. 14.
1997…………… P 2,583,450,000.00 102 Id.
1998…………… P 2,324,250,000.00 103 Id. at 546-547.
1999…………… P 1,517,800,000.00 (Food Security Program Fund) 104 Carvajal, Nancy, ―Malampaya fund lost ₱900M in JLN racket‖, Philippine Daily Inquirer, July
…………… P 2,500,000,000.00 (Lingap Para Sa Mahihirap Program Fund) 16, 2013 <http://newsinfo.inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket> (visited
…………… P 5,458,277,000.00 (Rural/Urban Development Infrastructure Program Fund) October 21, 2013.)
2000…………… P 3,330,000,000.00 105 TSN, October 8, 2013, p. 119.
2001…………… 2000 GAA re-enacted 106 Rollo (G.R. No. 208493), pp. 9 and 341.
2002…………… P 5,677,500,000.00 107 The Court observes that petitioners have not presented sufficient averments on the
2003…………… P 8,327,000,000.00 remittances from the Philippine Charity Sweepstakes Office‖ nor have defined the scope of "the
2004…………… 2003 GAA re-enacted Executive‘s Lump Sum Discretionary Funds" (See rollo [G.R. No. 208566], pp. 47-49) which
2005…………… P 6,100,000,000.00 appears to be too broad and all-encompassing. Also, while Villegas filed a Supplemental Petition
2006…………… 2005 GAA re-enacted dated October 1, 2013 (Supplemental Petition, see rollo [G.R. No. 208566], pp. 213-220, and pp.
2007…………… P 11,445,645,000.00 462-464) particularly presenting their arguments on the Disbursement Acceleration Program, the
2008…………… P 7,892,500,000.00 same is the main subject of G.R. Nos. 209135, 209136, 209155, 209164, 209260, 209287,
2009…………… P 9,665,027,000.00 209442, 209517, and 209569 and thus, must be properly resolved therein. Hence, for these
2010…………… P 10,861,211,000.00 reasons, insofar as the Presidential Pork Barrel is concerned, the Court is constrained not to delve
2011…………… P 24,620,000,000.00 on any issue related to the above-mentioned funds and consequently confine its discussion only
2012…………… P 24,890,000,000.00 with respect to the issues pertaining to the Malampaya Funds and the Presidential Social Fund.
2013…………… P 24,790,000,000.00 108 Rollo (G.R. No. 208566), pp. 48-49.
90 "Pork as a tool for political patronage, however, can extend as far as the executive branch. It is 109 Id. at 48.
no accident, for instance, that the release of the allocations often coincides with the passage of a 110 To note, Villegas‘ Supplemental Petition was filed on October 2, 2013.
Palace-sponsored bill. 111 Rollo, (G.R. No. 208566), p. 342; and rollo (G.R. No. 209251), pp. 6-7.
That pork funds have grown by leaps and bounds in the last decade can be traced to presidents in 112 Re-docketed as G.R. No. 209251 upon Nepomuceno‘s payment of docket fees on October
need of Congress support. The rise in pork was particularly notable during the Ramos 16, 2013 as reflected on the Official Receipt No. 0079340. Rollo (G.R. No. 209251) p. 409.
administration, when the president and House Speaker Jose de Venecia, Jr. used generous fund 113 Rollo (G.R. No. 208566) p. 97.
releases to convince congressmen to support Malacañang-initiated legislation. The Ramos era, in 114 G.R. Nos. 113105, 113174, 113766 & 113888, August 19, 1994, 235 SCRA 506.
fact, became known as the ‘golden age of pork.‘ 115 Supra note 95.
Through the years, though, congressmen have also taken care to look after their very own. More 116 Entitled "CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND
often than not, pork-barrel funds are funneled to projects in towns and cities where the lawmakers' FUNCTIONS, PROVIDING FUNDS, THEREFOR, AND FOR OTHER PURPOSES."
own relatives have been elected to public office; thus, pork is a tool for building family power as 117 Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993,
well. COA has come across many instances where pork-funded projects ended up directly 225 SCRA 568, 575.
benefiting no less than the lawmaker or his or her relatives."(CHUA, YVONNE T. and CRUZ, 118 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637
BOOMA, "Pork is a Political, Not A Developmental, Tool." <http://pcij.org/stories/2004/pork.html> SCRA 78, 148.
[visited October 22, 2013].) 119 Joya v. Presidential Commission on Good Government, supra note 117, at 575.
91 With reports from Inquirer Research and Salaverria, Leila, "Candazo, first whistle-blower on 120 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos.
pork barrel scam, dies; 61," Philippine Daily Inquirer, August 20, 2013, <http://newsinfo. 178552, 178554, 178581, 178890, 179157, and 179461, October 5, 2010, 632 SCRA 146, 175.
inquirer.net/469439/candazo-first-whistle-blower-on-pork-barrel-scam-dies-61> (visited October 121 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
21, 2013.) Ancestral Domain (GRP), G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14,
92 Id. 2008, 568 SCRA 402, 450.
93 Id. 122 Id. at 450-451.
94 Id. 123 Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, 169917, 173630, and 183599,
95 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. October 19, 2010, 633 SCRA 470, 493, citing Province of North Cotabato v. Government of the
No. 164987, April 24, 2012, 670 SCRA 373, 387. Republic of the Philippines Peace Panel on Ancestral Domain (GRP), G.R. Nos. 183591, 183752,
96 Carvajal, Nancy, " NBI probes ₱10-B scam," Philippine Daily Inquirer, July 12, 2013 183893, 183951, and 183962, October 14, 2008, 568 SCRA 402, 405.
<http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam> (visited October 21, 2013). 124 Id. at 492, citing Muskrat v. U.S., 219 U.S. 346 (1913).
97 Id. 125 Baldo, Jr. v. Commision on Elections, G.R. No. 176135, June 16, 2009, 589 SCRA 306, 310.
98 See NBI Executive Summary. <http://www.gov.ph/2013/09/16/executive-summary-by-the-nbi- 126 TSN, October 10, 2013, pp. 79-81.
on-the- pdaf-complaints-filed-against-janet-lim-napoles-et-al/> (visited October 22, 2013). 127 Section 17, Article VII of the 1987 Constitution reads: Sec. 17. The President shall have
99 Pursuant to Office Order No. 2010-309 dated May 13, 2010. control of all the executive departments, bureaus, and offices. He shall ensure that the laws be
100 During the Oral Arguments, the CoA Chairperson referred to the VILP as "the source of the so faithfully executed.
called HARD project, hard portion x x x "under the title the Budget of the DPWH." TSN, October 8, 128 Sec. 38. Suspension of Expenditure of Appropriations. – Except as otherwise provided in the
2013, p. 69. General Appropriations Act and whenever in his judgment the public interest so requires, the
101 These implementing agencies included the Department of Agriculture, DPWH and the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop
Department of Social Welfare and Development (DSWD). The GOCCs included Technology and further expenditure of funds allotted for any agency, or any other expenditure authorized in the

74
General Appropriations Act, except for personal services appropriations used for permanent 170 Id. at 10, citing Jeffrey Jackson, Judicial Independence, Adequate Court Funding, and
officials and employees. Inherent Judicial Powers, 52 Md. L. Rev. 217 (1993).
129 Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514, citing 171 See Nixon v. Administrator of General Services, 433 U.S. 425, 441-446 and 451-452 (1977)
Constantino v. Sandiganbayan (First Division), G.R. Nos. 140656 and 154482, September 13, and United States v. Nixon, 418 U.S. 683 (1974), cited in Justice Powell‘s concurring opinion in
2007, 533 SCRA 205, 219-220. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
130 Rollo (G.R. No. 208566), p. 292. 172 See Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 587 (1952), Springer v.
131 G.R. No. 198457, August 13, 2013. Philippine Islands, 277 U.S. 189, 203 (1928) cited in Justice Powell’s concurring opinion in
132 TSN, October 10, 2013, p. 134. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
133 Section 22, Article VII of the 1987 Constitution provides: 173 273 Phil. 443 (1991).
Sec. 22. The President shall submit to the Congress within thirty days from the opening of every 174 Id. at 461. "3. Budget Execution. Tasked on the Executive, the third phase of the budget
regular session, as the basis of the general appropriations bill, a budget of expenditures and process covers the various operational aspects of budgeting. The establishment of obligation
sources of financing, including receipts from existing and proposed revenue measures. authority ceilings, the evaluation of work and financial plans for individual activities, the continuing
134 Rollo (G.R. No. 208566), p. 294. review of government fiscal position, the regulation of funds releases, the implementation of cash
135 Id. at 5. payment schedules, and other related activities comprise this phase of the budget cycle."
136 G.R. No. 159085, February 3, 2004, 421 SCRA 656. 175 Biraogo v. Philippine Truth Commission of 2010, supra note 118, at 158.
137 Id. at 665. 176 Guingona, Jr. v. Carague, supra note 173, at 460-461.
138 See Francisco, Jr. v. Toll Regulatory Board, supra note 123, at 492. 177 Abakada Guro Party List v. Purisima, supra note 155, at 294-296.
139 369 US 186 82, S. Ct. 691, L. Ed. 2d. 663 [1962]. 178 Id. at 287.
140 Rollo (G.R. No. 208566), pp. 295-296. 179 Rollo (G.R. No. 208566), p. 179.
141 Tañada v. Cuenco, 100 Phil. 1101 (1957) unreported case. 180 Id. at 29.
142 406 Phil. 1 (2001). 181 Id. at 24.
143 Id. at 42-43. 182 Id. at 86.
144 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936). 183 Id. at 308.
145 La Bugal- B’laan Tribal Association, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004). 184 Id.
146 Rollo (G.R. No. 208566), p. 349. 185 See CDF Articles for the years 1991, 1992, 1993, 1994, 1995, 1996, 1997, and 1998.
147 Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding 186 See PDAF Article for the year 2000 which was re-enacted in 2001. See also the following
Judge, RTC of Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 1999 CIAs: "Food Security Program Fund," the " Lingap Para Sa Mahihirap Program Fund," and
470. the "Rural/Urban Development Infrastructure Program Fund." See further the 1997 DepEd School
148 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. No. 157870, November 3, Building Fund.
2008, 570 SCRA 410, 421. 187 See PDAF Article for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2013.
149 TSN, October 8, 2013, pp. 184-185. 188 Also, in Section 2.1 of DBM Circular No. 547 dated January 18, 2013 (DBM Circular 547-13),
150 People v. Vera, 65 Phil. 56, 89 (1937). or the "Guidelines on the Release of Funds Chargeable Against the Priority Development
151 See Lanuza v. CA, G.R. No. 131394, March 28, 2005, 454 SCRA 54, 61-62. Assistance Fund for FY 2013," it is explicitly stated that the "PDAF shall be used to fund priority
152 ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a programs and projects identified by the Legislators from the Project Menu." (Emphasis supplied)
part of the legal system of the Philippines. 189 To note, Special Provision 4 cannot – as respondents submit – refer to realignment of projects
153 Chinese Young Men’s Christian Association o f the Philippine Islands v. Remington Steel since the same provision subjects the realignment to the condition that the "allotment released has
Corporation, G.R. No. 159422, March 28, 2008, 550 SCRA 180, 197-198. not yet been obligated for the original project/scope of work". The foregoing proviso should be
154 Philconsa v. Enriquez, supra note 114, at 522. read as a textual reference to the savings requirement stated under Section 25(5), Article VI of the
155 G.R. No. 166715, August 14, 2008, 562 SCRA 251. 1987 Constitution which pertinently provides that "x x x the President, the President of the Senate,
156 Rollo (G.R. No. 208566), p. 325. the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the
157 Id. heads of Constitutional Commissions may, by law, be authorized to augment any item in the
158 Id. at 329. general appropriations law for their respective offices from savings in other items of their
159 Id. at 339. respective appropriations. In addition, Sections 4.2.3, 4.2.4 and 4.3.3 of DBM Circular 547-13, the
160 Id. at 338. implementing rules of the 2013 PDAF Article, respectively require that: (a) "the allotment is still
161 See note 107. valid or has not yet lapsed"; (b) "requests for realignment of unobligated allotment as of December
162 Angara v. Electoral Commission, supra note 144, at 139. 31, 2012 treated as continuing appropriations in FY 2013 shall be submitted to the DBM not later
163 Id. at 157. than June 30, 2013"; and (c) requests for realignment shall be supported with, among others, a
164 Section 1, Article VI, 1987 Constitution. "certification of availability of funds." As the letter of the law and the guidelines related thereto
165 Section 1, Article VII, 1987 Constitution. evoke the legal concept of savings, Special Provision 4 must be construed to be a provision on
166 Section 1, Article VIII, 1987 Constitution. realignment of PDAF funds, which would necessarily but only incidentally include the projects for
167 Angara v. Electoral Commission, supra note 144, at 156. which the funds have been allotted to. To construe it otherwise would effectively allow PDAF funds
168 Government of the Philippine Islands v. Springer, 277 U.S. 189, 203 (1928). to be realigned outside the ambit of the foregoing provision, thereby sanctioning a constitutional
169 Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by aberration.
the Retired Chief/Associate Justices of the Supreme Court, A.M. No. 11-7-10-SC, July 31, 2012, 190 Aside from the sharing of the executive‘s realignment authority with legislators in violation of
678 SCRA 1, 9-10, citing Carl Baar, Separate But Subservient: Court Budgeting In The American the separation of powers principle, it must be pointed out that Special Provision 4, insofar as it
States 149-52 (1975), cited in Jeffrey Jackson, Judicial Independence, Adequate Court Funding, confers fund realignment authority to department secretaries, is already unconstitutional by itself.
and Inherent Judicial Powers, 52 Md. L. Rev. 217 (1993). As recently held in Nazareth v. Villar (Nazareth), G.R. No. 188635, January 29, 2013, 689 SCRA
385, 403-404, Section 25(5), Article VI of the 1987 Constitution, limiting the authority to augment,

75
is "strictly but reasonably construed as exclusive" in favor of the high officials named therein. As that constitutional division . . . it is a breach of the National fundamental law if Congress gives up
such, the authority to realign funds allocated to the implementing agencies is exclusively vested in its legislative power and transfers it to the President, or to the Judicial branch, or if by law it
the President, viz.: attempts to invest itself or its members with either executive power of judicial power. This is not to
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article say that the three branches are not co-ordinate parts of one government and that each in the field
VI of the Constitution limiting the authority to transfer savings only to augment another item in the of its duties may not invoke government and that each in the field of its duties may not invoke the
GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. action of the two other branches in so far as the action invoked shall not be an assumption of the
Commission on Elections: constitutional field of action of another branch. In determining what it may do in seeking assistance
When the statute itself enumerates the exceptions to the application of the general rule, the from another branch, the extent and character of that assistance must be fixed according to
exceptions are strictly but reasonably construed. The exceptions extend only as far as their common sense and the inherent necessities of the governmental coordination. (Emphases
language fairly warrants, and all doubts should be resolved in favor of the general provision rather supplied)
than the exceptions. Where the general rule is established by a statute with exceptions, none but 195 Section 1, Article VI, 1987 Constitution.
the enacting authority can curtail the former. Not even the courts may add to the latter by 196 See Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 702 (1919).
implication, and it is a rule that an express exception excludes all others, although it is always 197 See Section 23(2), Article VI of the 1987 Constitution.
proper in determining the applicability of the rule to inquire whether, in a particular case, it accords 198 See Section 28(2), Article VI of the 1987 Constitution.
with reason and justice. 199 Abakada Guro Party List v. Purisima, supra note 155, at 288.
The appropriate and natural office of the exception is to exempt something from the scope of the 200 169 Phil. 437, 447-448 (1977).
general words of a statute, which is otherwise within the scope and meaning of such general 201 Philippine Constitution Association v. Enriquez, supra note 114, at 522.
words. Consequently, the existence of an exception in a statute clarifies the intent that the statute 202 Bengzon v. Secretary of Justice and Insular Auditor, 62 Phil. 912, 916 (1936).
shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; 203 Angara v. Electoral Commission, supra note 144, at 156.
hence, any doubt will be resolved in favor of the general provision and against the exception. 204 Abakada Guro Party List v. Purisima, supra note 155, at 287.
Indeed, the liberal construction of a statute will seem to require in many circumstances that the 205 Id. at 292.
exception, by which the operation of the statute is limited or abridged, should receive a restricted 206 Bengzon v. Secretary of Justice and Insular Auditor, supra note 202, at 916-917.
construction. (Emphases and underscoring supplied) 207 "Log-rolling legislation refers to the process in which several provisions supported by an
The cogence of the Nazareth dictum is not enfeebled by an invocation of the doctrine of qualified individual legislator or minority of legislators are combined into a single piece of legislation
political agency (otherwise known as the "alter ego doctrine") for the bare reason that the same is supported by a majority of legislators on a quid pro quo basis: no one provision may command
not applicable when the Constitution itself requires the President himself to act on a particular majority support, but the total package will.” See Rollo (G.R. No. 208566), p. 420, citing Briffault,
matter, such as that instructed under Section 25(5), Article VI of the Constitution. As held in the Richard, ―The Item Veto in State Courts,‖ 66 Temp. L. Rev. 1171, 1177 (1993).
landmark case of Villena v. Secretary of Interior (67 Phil. 451 [1987]), constitutional imprimatur is 208 Passarello, Nicholas, "The Item Veto and the Threat of Appropriations Bundling in Alaska," 30
precisely one of the exceptions to the application of the alter ego doctrine, viz.: Alaska Law Review 128 (2013), citing Black‘s Law Dictionary 1700 (9th ed. 2009).
After serious reflection, we have decided to sustain the contention of the government in this case <http://scholarship.law.duke.edu/alr/vol30/iss1/5> (visited October 23, 2013).
on the board proposition, albeit not suggested, that under the presidential type of government 209 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
which we have adopted and considering the departmental organization established and continued 210 299 U.S. 410 (1937).
in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative 211 To note, in Gonzales v. Macaraig, Jr. (G.R. No. 87636, November 19, 1990, 191 SCRA 452,
organizations are adjuncts of the Executive Department, the heads of the various executive 465), citing Commonwealth v. Dodson (11 S.E., 2d 120, 176 Va. 281), the Court defined an item
departments are assistants and agents of the Chief Executive, and except in cases where the of appropriation as "an indivisible sum of money dedicated to a stated purpose." In this relation,
Chief Executive is required by the Constitution or the law to act in person or the exigencies of the Justice Carpio astutely explained that an "item" is indivisible because the amount cannot be
situation demand that he act personally, the multifarious executive and administrative functions of divided for any purpose other than the specific purpose stated in the item.
the Chief Executive are performed by and through the executive departments, and the acts of the 212 Rollo (G.R. No. 208566), p. 421.
secretaries of such departments, performed and promulgated in the regular course of business, 213 Id.
are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief 214 Id. at 316.
Executive. (Emphases and underscoring supplied; citations omitted) 215 Id. at 421.
191 Abakada Guro Party List v. Purisima, supra note 155, at 294-296. 216 Id. at 566.
192 TSN, October 10, 2013, pp. 16, 17, 18, and 23. 217 Id. at 567.
193 TSN, October 10, 2013, pp. 72-73. 218 "It cannot be denied that most government actions are inspired with noble intentions, all
194 Aside from its conceptual origins related to the separation of powers principle, Corwin, in his geared towards the betterment of the nation and its people. But then again, it is important to
commentary on Constitution of the United States made the following observations: remember this ethical principle: ‘The end does not justify the means.‘ No matter how noble and
At least three distinct ideas have contributed to the development of the principle that legislative worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is
power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of simply irreconcilable with constitutional parameters, then it cannot still be allowed. The Court
separating the three powers of government if they can straightway remerge on their own motion? cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its
The second is the concept of due process of law, which precludes the transfer of regulatory enshrined principles. ‘The Constitution must ever remain supreme. All must bow to the mandate of
functions to private persons. Lastly, there is the maxim of agency "Delegata potestas non potest this law. Expediency must not be allowed to sap its strength nor greed for power debase its
delegari," which John Locke borrowed and formulated as a dogma of political science . . . Chief rectitude.‘" (Biraogo v. Philippine Truth Commission of 2010, supra note 118, 177; citations
Justice Taft offered the following explanation of the origin and limitations of this idea as a postulate omitted)
of constitutional law: "The well-known maxim ‘delegata potestas non potest delefari,‘ applicable to 219 Rollo (G.R. No. 208566), p. 406.
the law of agency in the general common law, is well understood and has had wider application in 220 Id. at 407.
the construction of our Federal and State Constitutions than it has in private law . . . The Federal 221 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A
and State Constitutions than it has in private law . . . The Federal Constitution and State Commentary, 2003 Edition, p. 1108.
Constitutions of this country divide the governmental power into three branches . . . In carrying out 222 Abakada Guro Party List v. Purisima, supra note 155.

76
223 See Section 22, Article VI, 1987 Constitution. 251 Based on a July 5, 2011 posting in the government’s website
224 See Section 21, Article VI, 1987 Constitution. <http://www.gov.ph/2011/07/05/budget-secretary-abad-clarifies-nature-of-malampaya-fund/>;
225 Rollo (G.R. No. 208493), p. 9. attached as Annex "A" to the Petitioners‘ Memorandum), the Malampaya Funds were also used
226 See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, for non-energy related projects, to wit:
100-101. The rest of the 98.73 percent or ₱19.39 billion was released for non-energy related projects: 1) in
227 Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991." 2006, ₱1 billion for the Armed Forces Modernization Fund; 2) in 2008, ₱4 billion for the
228 230 Phil. 379, 387-388 (1986). Department of Agriculture; 3) in 2009, a total of ₱14.39 billion to various agencies, including:
229 Id. ₱7.07 billion for the Department of Public Works and Highways; ₱2.14 billion for the Philippine
230 Rollo (G.R. No. 208566), pp. 95-96. National Police; ₱1.82 billion for [the Department of Agriculture]; ₱1.4 billion for the National
231 Philconsa v. Enriquez, supra note 114, at 523. Housing Authority; and ₱900 million for the Department of Agrarian Reform.
232 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, 252 For academic purposes, the Court expresses its disagreement with petitioners‘ argument that
"Understanding the ‘Pork Barrel,‘" <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf > the previous version of Section 12 of PD 1869 constitutes an undue delegation of legislative power
(visited October 17, 2013). since it allows the President to broadly determine the purpose of the Presidential Social Fund‘s
233 <http://www.gov.ph/2013/08/23/english-statement-of-president-aquino-on-the-abolition-of- use and perforce must be declared unconstitutional. Quite the contrary, the 1st paragraph of the
pdaf-august-23-2013/> (visited October 22, 2013). said provision clearly indicates that the Presidential Social Fund shall be used to finance specified
234 Section 106 of the LGC provides: types of priority infrastructure and socio-civic projects, namely, Flood Control, Sewerage and
Sec. 106. Local Development Councils. – (a) Each local government unit shall have a Sewage, Nutritional Control, Population Control, Tulungan ng Bayan Centers, Beautification and
comprehensive multi-sectoral development plan to be initiated by its development council and Kilusang Kabuhayan at Kaunlaran (KKK) projects located within the Metropolitan Manila area.
approved by its sanggunian. For this purpose, the development council at the provincial, city, However, with regard to the stated geographical-operational limitation, the 2nd paragraph of the
municipal, or barangal level, shall assist the corresponding sanggunian in setting the direction of same provision nevertheless allows the Presidential Social Fund to finance "priority infrastructure
economic and social development, and coordinating development efforts within its territorial and socio-civic projects throughout the Philippines as may be directed and authorized by the
jurisdiction. Office of the President of the Philippines." It must, however, be qualified that the 2nd paragraph
235 See Section 109 of the LGC. should not be construed to mean that the Office of the President may direct and authorize the use
236 Rollo (G.R. No. 208566), p. 423. of the Presidential Social Fund to any kind of infrastructure and socio-civic project throughout the
237 Id. at 427. Philippines. Pursuant to the maxim of noscitur a sociis , (meaning, that a word or phrase‘s "correct
238 Id. at 439-440. construction may be made clear and specific by considering the company of words in which it is
239 Id. at 434 and 441. founded or with which it is associated"; see Chavez v. Judicial and Bar Council, G.R. No. 202242,
240 See Guingona, Jr. v. Carague, supra note 173, where the Court upheld the constitutionality of July 17, 2012, 676 SCRA 579, 598-599) the 2nd paragraph should be construed only as an
certain automatic appropriation laws for debt servicing although said laws did not readily indicate expansion of the geographical-operational limitation stated in the 1st paragraph of the same
the exact amounts to be paid considering that "the amounts nevertheless are made certain by the provision and not a grant of carte blanche authority to the President to veer away from the project
legislative parameters provided in the decrees"; hence, "the Executive is not of unlimited types specified thereunder. In other words, what the 2nd paragraph merely allows is the use of the
discretion as to the amounts to be disbursed for debt servicing." To note, such laws vary in great Presidential Social Fund for Flood Control, Sewerage and Sewage, Nutritional Control, Population
degree with the way the 2013 PDAF Article works considering that: (a) individual legislators and Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at Kaunlaran (KKK)
not the executive make the determinations; (b) the choice of both the amount and the project are projects even though the same would be located outside the Metropolitan Manila area. To deem it
to be subsequently made after the law is passed and upon the sole discretion of the legislator, otherwise would be tantamount to unduly expanding the rule-making authority of the President in
unlike in Guingona, Jr. where the amount to be appropriated is dictated by the contingency violation of the sufficient standard test and, ultimately, the principle of non-delegability of
external to the discretion of the disbursing authority; and (c) in Guingona, Jr. there is no effective legislative power.
control of the funds since as long as the contingency arises money shall be automatically 253 Black‘s Law Dictionary (7th Ed., 1999), p. 784.
appropriated therefor, hence what is left is merely law execution and not legislative discretion. 254 Rollo (G.R. No. 208566), pp. 48-49.
241 Id. at 462. 255 Id.
242 23 Nev. 25 (1895). 256 234 Phil. 521, 533-534 (1987).
243 Rollo (G.R. No. 208566), p. 438. 257 252 Phil. 264 (1989).
244 Id. at 300. 258 Id. at 279
245 The project identifications made by the Executive should always be in the nature of law 259 Id. at 278.
enforcement and, hence, for the sole purpose of enforcing an existing appropriation law. In 260 Rollo (G.R. No. 208566), p. 463.
relation thereto, it may exercise its rule-making authority to greater particularize the guidelines for 261 Id. at 459-462.
such identifications which, in all cases, should not go beyond what the delegating law provides. 262 Id. at 304-305.
Also, in all cases, the Executive‘s identification or rule-making authority, insofar as the field of 263 <http://www.dbm.gov.ph/wp-content/uploads/BESE/BESE2013/Glossary.pdf> (visited
appropriations is concerned, may only arise if there is a valid appropriation law under the November 4, 2013).
parameters as above-discussed. 264 Notice of Cash Allocation (NCA). Cash authority issued by the DBM to central, regional and
246 Abakada Guro Party List v. Purisima, supra note 155. provincial offices and operating units through the authorized government servicing banks of the
247 See Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A MDS,* to cover the cash requirements of the agencies.
Commentary, 2009 Edition, pp. 686-687, citing Pelaez v. Auditor General, 15 SCRA 569, 576-577 *MDS stands for Modified Disbursement Scheme. It is a procedure whereby disbursements by NG
(1965). agencies chargeable against the account of the Treasurer of the Philippines are effected through
248 Id. at 277. GSBs.**
249 § 438 Ejusdem Generis ("of the same kind"); specific words; 82 C.J.S. Statutes § 438. ** GSB stands for Government Servicing Banks. (Id.)
250 Rollo (G.R. No. 208566), p. 437, citing § 438 Ejusdem Generis ("of the same kind"); specific 265 TSN, October 10, 2013, pp. 35-36.
words; 82 C.J.S. Statutes § 438.

77
266 Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, The controversy arose when respondent Government Service Insurance System (GSIS), pursuant
October 8, 2013, citing Serrano de Agbayani v. Philippine National Bank, 148 Phil. 443, 447-448 to the privatization program of the Philippine Government under Proclamation No. 50 dated 8
(1971). December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
267 Id. shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
268 Id. management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid
for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset
to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and
GSIS will instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract,
International Marketing/Reservation System Contract or other type of contract specified by the
Highest Bidder in its strategic plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to
November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office
of the Government Corporate Counsel) are obtained.3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.4 In a
subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust
Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of
the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus.
7. Republic of the Philippines On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from
SUPREME COURT perfecting and consummating the sale to the Malaysian firm.
Manila On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred
EN BANC to it by the First Division. The case was then set for oral arguments with former Chief Justice
Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
G.R. No. 122156 February 3, 1997 In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
MANILA PRINCE HOTEL petitioner, historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
vs. independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
business of respondent GSIS being a part of the tourism industry is unquestionably a part of the
CORPORATE COUNSEL, respondents.
national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987
BELLOSILLO, J.:
Constitution, applies.7
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges,
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
and concessions covering the national economy and patrimony, the State shall give preference to
business also unquestionably part of the national economy petitioner should be preferred after it
qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila
has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any
Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the
that the provision is not self-executing but requires an implementing legislation for its enforcement.
other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
willing to match the highest bid in terms of price per share.8
covered by the protective mantle of the Constitution.
78
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 examination and construction of its terms, and there is no language indicating that the subject is
Constitution is merely a statement of principle and policy since it is not a self-executing provision referred to the legislature for action. 13
and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be As against constitutions of the past, modern constitutions have been generally drafted upon a
existing laws "to lay down conditions under which business may be done."9 different principle and have often become in effect extensive codes of laws intended to operate
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term directly upon the people in a manner similar to that of statutory enactments, and the function of
national patrimony which only refers to lands of the public domain, waters, minerals, coal, constitutional conventions has evolved into one more like that of a legislative body. Hence, unless
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in presumption now is that all provisions of the constitution are self-executing If the constitutional
the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, provisions are treated as requiring legislation instead of self-executing, the legislature would have
while petitioner speaks of the guests who have slept in the hotel and the events that have the power to ignore and practically nullify the mandate of the fundamental law.14 This can be
transpired therein which make the hotel historic, these alone do not make the hotel fall under the cataclysmic. That is why the prevailing view is, as it has always been, that —
patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, . . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
not to respondent GSIS which possesses a personality of its own separate and distinct from the executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
Philippines as a State. considered self-executing, as a contrary rule would give the legislature discretion to determine
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional when, or whether, they shall be effective. These provisions would be subordinated to the will of the
provision invoked is still inapplicable since what is being sold is only 51% of the outstanding lawmaking body, which could make them entirely meaningless by simply refusing to pass the
shares of the corporation, not the hotel building nor the land upon which the building stands. needed implementing statute. 15
Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —
petitioner should have questioned it right from the beginning and not after it had lost in the bidding. MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that on Style. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why
to the other Qualified Bidders that have validly submitted bids provided that these Qualified do we not make it clear? To qualified Filipinos as against aliens?
Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place "QUALIFIED?".
if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As
by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded against aliens or over aliens?
the block of shares and the condition giving rise to the exercise of the privilege to submit a MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED"
matching bid had not yet taken place. because the existing laws or prospective laws will always lay down conditions under which
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since business may be done. For example, qualifications on the setting up of other financial structures,
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it et cetera (emphasis supplied by respondents)
did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive MR. RODRIGO. It is just a matter of style.
duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus MR. NOLLEDO Yes, 16
should fail as petitioner has no clear legal right to what it demands and respondents do not have Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it
an imperative duty to perform the act required of them by petitioner. appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is
We now resolve. A constitution is a system of fundamental laws for the governance and not precluded from enacting other further laws to enforce the constitutional provision so long as
administration of a nation. It is supreme, imperious, absolute and unalterable except by the the contemplated statute squares with the Constitution. Minor details may be left to the legislature
authority from which it emanates. It has been defined as the fundamental and paramount law of without impairing the self-executing nature of constitutional provisions.
the nation. 10 It prescribes the permanent framework of a system of government, assigns to the In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
different departments their respective powers and duties, and establishes certain fixed principles exercise of powers directly granted by the constitution, further the operation of such a provision,
on which government is founded. The fundamental conception in other words is that it is a prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection
supreme law to which all other laws must conform and in accordance with which all private rights of the rights secured or the determination thereof, or place reasonable safeguards around the
must be determined and all public authority administered. 11 Under the doctrine of constitutional exercise of the right. The mere fact that legislation may supplement and add to or prescribe a
supremacy, if a law or contract violates any norm of the constitution that law or contract whether penalty for the violation of a self-executing constitutional provision does not render such a
promulgated by the legislative or by the executive branch or entered into by private persons for provision ineffective in the absence of such legislation. The omission from a constitution of any
private purposes is null and void and without any force and effect. Thus, since the Constitution is express provision for a remedy for enforcing a right or liability is not necessarily an indication that
the fundamental, paramount and supreme law of the nation, it is deemed written in every statute it was not intended to be self-executing. The rule is that a self-executing provision of the
and contract. constitution does not necessarily exhaust legislative power on the subject, but any legislation must
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions be in harmony with the constitution, further the exercise of constitutional right and make it more
command the legislature to enact laws and carry out the purposes of the framers who merely available. 17 Subsequent legislation however does not necessarily mean that the subject
establish an outline of government providing for the different departments of the governmental constitutional provision is not, by itself, fully enforceable.
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
usually not self-executing. But a provision which is complete in itself and becomes operative not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-
without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by executing because Congress is still to enact measures to encourage the formation and operation
means of which the right it grants may be enjoyed or protected, is self-executing. Thus a of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs
constitutional provision is self-executing if the nature and extent of the right conferred and the legislation to regulate and exercise authority over foreign investments within its national
liability imposed are fixed by the constitution itself, so that they can be determined by an jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can

79
only be self-executing as it does not by its language require any legislation in order to give Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity
preference to qualified Filipinos in the grant of rights, privileges and concessions covering the of the MHC comes within the purview of the constitutional shelter for it comprises the majority and
national economy and patrimony. A constitutional provision may be self-executing in one part and controlling stock, so that anyone who acquires or owns the 51% will have actual control and
non-self-executing in another. 19 management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
Even the cases cited by respondents holding that certain constitutional provisions are merely hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain
statements of principles and policies, which are basically not self-executing and only placed in the respondents' claim that the Filipino First Policy provision is not applicable since what is being sold
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon
in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional which the building stands. 38
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation- The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
Secretary of Finance 26 refers to the constitutional provisions on social justice and human rights proceedings of the 1986 Constitutional Commission
27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of THE PRESIDENT. Commissioner Davide is recognized.
general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the
the promotion of total human liberation and development. 33 A reading of these provisions indeed amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following:
clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL
legislation. The very terms of the provisions manifest that they are only principles upon which the OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
legislations must be based. Res ipsa loquitur. xxx xxx xxx
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a
positive command which is complete in itself and which needs no further guidelines or question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?
implementing laws or rules for its enforcement. From its very words the provision does not require MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a
any legislation to put it in operation. It is per se judicially enforceable When our Constitution corporation wholly owned by Filipino citizens?
mandates that [i]n the grant of rights, privileges, and concessions covering national economy and MR. MONSOD. At least 60 percent, Madam President.
patrimony, the State shall give preference to qualified Filipinos, it means just that — qualified MR. DAVIDE. Is that the intention?
Filipinos shall be preferred. And when our Constitution declares that a right exists in certain MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should
specified circumstances an action may be maintained to enforce such right notwithstanding the only be 100-percent Filipino.
absence of any legislation on the subject; consequently, if there is no statute especially enacted to MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to
enforce such constitutional right, such right enforces itself by its own inherent potency and individuals and not to juridical personalities or entities.
puissance, and from which all legislations must take their bearings. Where there is a right there is MR. MONSOD. We agree, Madam President. 39
a remedy. Ubi jus ibi remedium. xxx xxx xxx
As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains MR. RODRIGO. Before we vote, may I request that the amendment be read again.
— MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND
The patrimony of the Nation that should be conserved and developed refers not only to out rich CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE
natural resources but also to the cultural heritage of out race. It also refers to our intelligence in SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as
arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and intended by the proponents, will include not only individual Filipinos but also Filipino-controlled
other natural resources but also the mental ability or faculty of our people. entities or entities fully-controlled by Filipinos. 40
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the The phrase preference to qualified Filipinos was explained thus —
Constitution speaks of national patrimony, it refers not only to the natural resources of the MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his
Philippines, as the Constitution could have very well used the term natural resources, but also to amendment so that I can ask a question.
the cultural heritage of the Filipinos. MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly QUALIFIED FILIPINOS."
Filipino, Formerly a concourse for the elite, it has since then become the venue of various MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino
significant events which have shaped Philippine history. It was called the Cultural Center of the enterprise is also qualified, will the Filipino enterprise still be given a preference?