EN BANC x-------------------------x

ABAKADA GURO PARTY LIST (Formerly G.R. No. 168056

AASJAS) OFFICERS SAMSON S.
AQUILINO Q. PIMENTEL, JR., LUISA P. G.R. No. 168207
ALCANTARA and ED VINCENT S. ALBANO,
EJERCITO-ESTRADA, JINGGOY E. ESTRADA,
Petitioners, Present: PANFILO M. LACSON, ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, AND SERGIO R.
OSMEA III,
DAVIDE, JR., C.J.,
Petitioners,
PUNO,

PANGANIBAN,
- versus -
QUISUMBING,

YNARES-SANTIAGO,
EXECUTIVE SECRETARY EDUARDO R.
SANDOVAL-GUTIERREZ, ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR.,
- versus - CARPIO, COMMISSIONER OF THE BUREAU OF
INTERNAL REVENUE,
AUSTRIA-MARTINEZ,
Respondents.
CORONA,

CARPIO-MORALES,
x-------------------------x
CALLEJO, SR.,

AZCUNA,
ASSOCIATION OF PILIPINAS SHELL DEALERS, G.R. No. 168461
TINGA,
INC. represented by its President, ROSARIO
CHICO-NAZARIO, and ANTONIO; PETRON DEALERS ASSOCIATION
represented by its President, RUTH E.
GARCIA, JJ. BARBIBI; ASSOCIATION OF CALTEX DEALERS
THE HONORABLE EXECUTIVE SECRETARY OF THE PHILIPPINES represented by its
EDUARDO ERMITA; HONORABLE SECRETARY President, MERCEDITAS A. GARCIA;
OF THE DEPARTMENT OF FINANCE CESAR ROSARIO ANTONIO doing business under
PURISIMA; and HONORABLE the name and style of ANB NORTH SHELL
COMMISSIONER OF INTERNAL REVENUE SERVICE STATION; LOURDES MARTINEZ
GUILLERMO PARAYNO, JR., doing business under the name and style of
SHELL GATE N. DOMINGO; BETHZAIDA TAN
Respondents. doing business under the name and style of
ADVANCE SHELL STATION; REYNALDO P.
MONTOYA doing business under the name
and style of NEW LAMUAN SHELL SERVICE
STATION; EFREN SOTTO doing business
under the name and style of RED FIELD
SHELL SERVICE STATION; DONICA
CORPORATION represented by its President,
DESI TOMACRUZ; RUTH E. MARBIBI doing
business under the name and style of R&R
PETRON STATION; PETER M. UNGSON doing
business under the name and style of
CLASSIC STAR GASOLINE SERVICE STATION;
MARIAN SHEILA A. LEE doing business under
the name and style of NTE GASOLINE &
SERVICE STATION; JULIAN CESAR P.
POSADAS doing business under the name
and style of STARCARGA ENTERPRISES;
ADORACION MAEBO doing business under
the name and style of CMA MOTORISTS
CENTER; SUSAN M. ENTRATA doing business
under the name and style of LEONAS
GASOLINE STATION and SERVICE CENTER;
CARMELITA BALDONADO doing business
under the name and style of FIRST CHOICE
SERVICE CENTER; MERCEDITAS A. GARCIA
doing business under the name and style of
LORPED SERVICE CENTER; RHEAMAR A.
RAMOS doing business under the name and
style of RJRAM PTT GAS STATION; MA.
ISABEL VIOLAGO doing business under the
name and style of VIOLAGO-PTT SERVICE
CENTER; MOTORISTS HEART CORPORATION
represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA;
MOTORISTS HARVARD CORPORATION
represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA;
MOTORISTS HERITAGE CORPORATION
represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA;
PHILIPPINE STANDARD OIL CORPORATION
represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA;
ROMEO MANUEL doing business under the
name and style of ROMMAN GASOLINE
STATION; ANTHONY ALBERT CRUZ III doing
business under the name and style of TRUE
SERVICE STATION,
Petitioners,
- versus -
CESAR V. PURISIMA, in his capacity as
Secretary of the Department of Finance and
GUILLERMO L. PARAYNO, JR., in his capacity
as Commissioner of Internal Revenue,
Respondents.
x-------------------------x
FRANCIS JOSEPH G. ESCUDERO, VINCENT G.R. No. 168463
CRISOLOGO, EMMANUEL JOEL J.
VILLANUEVA, RODOLFO G. PLAZA, DARLENE
ANTONINO-CUSTODIO, OSCAR G.
MALAPITAN, BENJAMIN C. AGARAO, JR.
JUAN EDGARDO M. ANGARA, JUSTIN MARC
SB. CHIPECO, FLORENCIO G. NOEL, MUJIV S.
HATAMAN, RENATO B. MAGTUBO, JOSEPH
A. SANTIAGO, TEOFISTO DL. GUINGONA III,
RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI
and TEODORO A. CASIO,
Petitioners,
- versus -
CESAR V. PURISIMA, in his capacity as
Secretary of Finance, GUILLERMO L.
PARAYNO, JR., in his capacity as
Commissioner of Internal Revenue, and
EDUARDO R. ERMITA, in his capacity as
Executive Secretary,
Respondents.
x-------------------------x
BATAAN GOVERNOR ENRIQUE T. GARCIA,
JR.
Petitioner,
- versus -
HON. EDUARDO R. ERMITA, in his capacity
as the Executive Secretary; HON.
MARGARITO TEVES, in his capacity as
Secretary of Finance; HON. JOSE MARIO
BUNAG, in his capacity as the OIC
Commissioner of the Bureau of Internal
Revenue; and HON. ALEXANDER AREVALO,
in his capacity as the OIC Commissioner of
the Bureau of Customs,
Respondents.
x-----------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
The expenses of government, having for their object the interest of all, should be borne by everyone,
and the more man enjoys the advantages of society, the more he ought to hold himself honored in
G.R. No. 168730
contributing to those expenses.
-Anne Robert Jacques Turgot (1727-1781)
French statesman and economist
Mounting budget deficit, revenue generation, inadequate fiscal allocation for education, increased
emoluments for health workers, and wider coverage for full value-added tax benefits these are the
reasons why Republic Act No. 9337 (R.A. No. 9337)[1] was enacted. Reasons, the wisdom of which, the
Court even with its extensive constitutional power of review, cannot probe. The petitioners in these
cases, however, question not only the wisdom of the law, but also perceived constitutional infirmities in
its passage.
Every law enjoys in its favor the presumption of constitutionality. Their arguments notwithstanding,
petitioners failed to justify their call for the invalidity of the law. Hence, R.A. No. 9337 is not
unconstitutional.
LEGISLATIVE HISTORY
Promulgated:
September 1, 2005 R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705, and
Senate Bill No. 1950.
House Bill No. 3555[2] was introduced on first reading on January 7, 2005. The House Committee on
Ways and Means approved the bill, in substitution of House Bill No. 1468, which Representative (Rep.)
Eric D. Singson introduced on August 8, 2004. The President certified the bill on January 7, 2005 for Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking through
immediate enactment. On January 27, 2005, the House of Representatives approved the bill on second Mr. Justice Artemio V. Panganiban, voiced the rationale for its issuance of the temporary restraining
and third reading. order on July 1, 2005, to wit:

J. PANGANIBAN : . . . But before I go into the details of your presentation, let me just tell you a little
background. You know when the law took effect on July 1, 2005, the Court issued a TRO at about 5
House Bill No. 3705[3] on the other hand, substituted House Bill No. 3105 introduced by Rep. Salacnib F.
oclock in the afternoon. But before that, there was a lot of complaints aired on television and on radio.
Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its mother bill is House Bill No.
Some people in a gas station were complaining that the gas prices went up by 10%. Some people were
3555. The House Committee on Ways and Means approved the bill on February 2, 2005. The President
complaining that their electric bill will go up by 10%. Other times people riding in domestic air carrier
also certified it as urgent on February 8, 2005. The House of Representatives approved the bill on
were complaining that the prices that theyll have to pay would have to go up by 10%. While all that was
second and third reading on February 28, 2005.
being aired, per your presentation and per our own understanding of the law, thats not true. Its not true
that the e-vat law necessarily increased prices by 10% uniformly isnt it?

Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 1950[4] on March 7,
2005, in substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into consideration House Bill Nos.
ATTY. BANIQUED : No, Your Honor.
3555 and 3705. Senator Ralph G. Recto sponsored Senate Bill No. 1337, while Senate Bill Nos. 1838 and
1873 were both sponsored by Sens. Franklin M. Drilon, Juan M. Flavier and Francis N. Pangilinan. The
President certified the bill on March 11, 2005, and was approved by the Senate on second and third
J. PANGANIBAN : It is not?
reading on April 13, 2005.

ATTY. BANIQUED : Its not, because, Your Honor, there is an Executive Order that granted the Petroleum
On the same date, April 13, 2005, the Senate agreed to the request of the House of Representatives for
companies some subsidy . . . interrupted
a committee conference on the disagreeing provisions of the proposed bills.

Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555, House Bill
No. 3705, and Senate Bill No. 1950, after having met and discussed in full free and conference, J. PANGANIBAN : Thats correct . . .
recommended the approval of its report, which the Senate did on May 10, 2005, and with the House of
Representatives agreeing thereto the next day, May 11, 2005.
ATTY. BANIQUED : . . . and therefore that was meant to temper the impact . . . interrupted

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

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

July 1, 2005 is the effectivity date of R.A. No. 9337.[5] When said date came, the Court issued a
temporary restraining order, effective immediately and continuing until further orders, enjoining
respondents from enforcing and implementing the law. ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : As a matter of fact a part of the mitigating measures would be the elimination of the J. PANGANIBAN : Alright. So thats one reason why we had to issue a TRO pending the clarification of all
Excise Tax and the import duties. That is why, it is not correct to say that the VAT as to petroleum these and we wish the government will take time to clarify all these by means of a more detailed
dealers increased prices by 10%. implementing rules, in case the law is upheld by this Court. . . . [6]

ATTY. BANIQUED : Yes, Your Honor.

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

J. PANGANIBAN : And therefore, there is no justification for increasing the retail price by 10% to cover
the E-Vat tax. If you consider the excise tax and the import duties, the Net Tax would probably be in the
G.R. No. 168056
neighborhood of 7%? We are not going into exact figures I am just trying to deliver a point that different
industries, different products, different services are hit differently. So its not correct to say that all prices
must go up by 10%.
Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition for
ATTY. BANIQUED : Youre right, Your Honor. prohibition on May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337,
amending Sections 106, 107 and 108, respectively, of the National Internal Revenue Code (NIRC).
Section 4 imposes a 10% VAT on sale of goods and properties, Section 5 imposes a 10% VAT on
importation of goods, and Section 6 imposes a 10% VAT on sale of services and use or lease of
properties. These questioned provisions contain a uniform proviso authorizing the President, upon
J. PANGANIBAN : Now. For instance, Domestic Airline companies, Mr. Counsel, are at present imposed a
recommendation of the Secretary of Finance, to raise the VAT rate to 12%, effective January 1, 2006,
Sales Tax of 3%. When this E-Vat law took effect the Sales Tax was also removed as a mitigating
after any of the following conditions have been satisfied, to wit:
measure. So, therefore, there is no justification to increase the fares by 10% at best 7%, correct?

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

J. PANGANIBAN : There are other products that the people were complaining on that first day, were
being increased arbitrarily by 10%. And thats one reason among many others this Court had to issue
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
TRO because of the confusion in the implementation. Thats why we added as an issue in this case, even
exceeds two and four-fifth percent (2 4/5%); or
if its tangentially taken up by the pleadings of the parties, the confusion in the implementation of the E-
vat. Our people were subjected to the mercy of that confusion of an across the board increase of 10%,
which you yourself now admit and I think even the Government will admit is incorrect. In some cases, it
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-half
should be 3% only, in some cases it should be 6% depending on these mitigating measures and the
percent (1 %).
location and situation of each product, of each service, of each company, isnt it?

ATTY. BANIQUED : Yes, Your Honor.

Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of its
exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987 Philippine
Constitution.
 gross payments of goods and services, which are subject to 10% VAT under Sections 106 (sale of goods
and properties) and 108 (sale of services and use or lease of properties) of the NIRC.
G.R. No. 168207

On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise assailing the
constitutionality of Sections 4, 5 and 6 of R.A. No. 9337. Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive, excessive,
and confiscatory.
Aside from questioning the so-called stand-by authority of the President to increase the VAT rate to
12%, on the ground that it amounts to an undue delegation of legislative power, petitioners also
contend that the increase in the VAT rate to 12% contingent on any of the two conditions being satisfied
Petitioners argument is premised on the constitutional right of non-deprivation of life, liberty or
violates the due process clause embodied in Article III, Section 1 of the Constitution, as it imposes an
property without due process of law under Article III, Section 1 of the Constitution. According to
unfair and additional tax burden on the people, in that: (1) the 12% increase is ambiguous because it
petitioners, the contested sections impose limitations on the amount of input tax that may be claimed.
does not state if the rate would be returned to the original 10% if the conditions are no longer satisfied;
Petitioners also argue that the input tax partakes the nature of a property that may not be confiscated,
(2) the rate is unfair and unreasonable, as the people are unsure of the applicable VAT rate from year to
appropriated, or limited without due process of law. Petitioners further contend that like any other
year; and (3) the increase in the VAT rate, which is supposed to be an incentive to the President to raise
property or property right, the input tax credit may be transferred or disposed of, and that by limiting
the VAT collection to at least 2 4/5 of the GDP of the previous year, should only be based on fiscal
the same, the government gets to tax a profit or value-added even if there is no profit or value-added.
adequacy.

Petitioners also believe that these provisions violate the constitutional guarantee of equal protection of
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the
the law under Article III, Section 1 of the Constitution, as the limitation on the creditable input tax if: (1)
Bicameral Conference Committee is a violation of the no-amendment rule upon last reading of a bill laid
the entity has a high ratio of input tax; or (2) invests in capital equipment; or (3) has several transactions
down in Article VI, Section 26(2) of the Constitution.
with the government, is not based on real and substantial differences to meet a valid classification.

G.R. No. 168461

Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI, Section
28(1) of the Constitution, and that it is the smaller businesses with higher input tax to output tax ratio
that will suffer the consequences thereof for it wipes out whatever meager margins the petitioners
Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association of Pilipinas Shell
make.
Dealers, Inc., et al., assailing the following provisions of R.A. No. 9337:

1) Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on depreciable goods
shall be amortized over a 60-month period, if the acquisition, excluding the VAT components, exceeds G.R. No. 168463
One Million Pesos (P1, 000,000.00);

Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed this
2) Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of input tax to petition for certiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337 on the
be credited against the output tax; and following grounds:

3) Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its political 1) Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in violation
subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final withholding tax on of Article VI, Section 28(2) of the Constitution;
 Respondents also refute petitioners argument that the increase to 12%, as well as the 70% limitation on
the creditable input tax, the 60-month amortization on the purchase or importation of capital goods
2) The Bicameral Conference Committee acted without jurisdiction in deleting the no pass on provisions
exceeding P1,000,000.00, and the 5% final withholding tax by government agencies, is arbitrary,
present in Senate Bill No. 1950 and House Bill No. 3705; and
oppressive, and confiscatory, and that it violates the constitutional principle on progressive taxation,
among others.

3) Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121,
125,[7] 148, 151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article VI,
Finally, respondents manifest that R.A. No. 9337 is the anchor of the governments fiscal reform agenda.
Section 24(1) of the Constitution, which provides that all appropriation, revenue or tariff bills shall
A reform in the value-added system of taxation is the core revenue measure that will tilt the balance
originate exclusively in the House of Representatives
towards a sustainable macroeconomic environment necessary for economic growth.

G.R. No. 168730

ISSUES

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

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

a. Article VI, Section 24, and

The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents. Preliminarily, b. Article VI, Section 26(2)
respondents contend that R.A. No. 9337 enjoys the presumption of constitutionality and petitioners
failed to cast doubt on its validity.
SUBSTANTIVE ISSUES

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

630 (1994), respondents argue that the procedural issues raised by petitioners, i.e., legality of the 1. Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
bicameral proceedings, exclusive origination of revenue measures and the power of the Senate violate the following provisions of the Constitution:
concomitant thereto, have already been settled. With regard to the issue of undue delegation of
legislative power to the President, respondents contend that the law is complete and leaves no
discretion to the President but to increase the rate to 12% once any of the two conditions provided a. Article VI, Section 28(1), and
therein arise.
b. Article VI, Section 28(2)
2. Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and Section
12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions of the
Constitution:
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law, [16] R.A. No. 8241 or the Improved
VAT Law,[17] R.A. No. 8424 or the Tax Reform Act of 1997,[18] and finally, the presently beleaguered R.A.
a. Article VI, Section 28(1), and No. 9337, also referred to by respondents as the VAT Reform Act.

b. Article III, Section 1

The Court will now discuss the issues in logical sequence.

RULING OF THE COURT PROCEDURAL ISSUE

I.

As a prelude, the Court deems it apt to restate the general principles and concepts of value-added tax Whether R.A. No. 9337 violates the following provisions of the Constitution:
(VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its nature.

a. Article VI, Section 24, and

The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of goods
b. Article VI, Section 26(2)
or properties and services.[8] Being an indirect tax on expenditure, the seller of goods or services may
pass on the amount of tax paid to the buyer, [9] with the seller acting merely as a tax collector.[10] The
burden of VAT is intended to fall on the immediate buyers and ultimately, the end-consumers.
A. The Bicameral Conference Committee

In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it
engages in, without transferring the burden to someone else. [11] Examples are individual and corporate Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference Committee
income taxes, transfer taxes, and residence taxes.[12] exceeded its authority by:

In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a 1) Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No. 9337;
different mode. Prior to 1978, the system was a single-stage tax computed under the cost deduction
method and was payable only by the original sellers. The single-stage system was subsequently
modified, and a mixture of the cost deduction method and tax credit method was used to determine the 2) Deleting entirely the no pass-on provisions found in both the House and Senate bills;
value-added tax payable.[13]Under the tax credit method, an entity can credit against or subtract from
the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and imports. [14]
3) Inserting the provision imposing a 70% limit on the amount of input tax to be credited against the
output tax; and
It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the VAT
system was rationalized by imposing a multi-stage tax rate of 0% or 10% on all sales using the tax credit
method.[15]
4) Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes in
addition to the value-added tax.
Petitioners now beseech the Court to define the powers of the Bicameral Conference Committee.
It should be borne in mind that the power of internal regulation and discipline are intrinsic in any
legislative body for, as unerringly elucidated by Justice Story, [i]f the power did not exist, it would be
utterly impracticable to transact the business of the nation, either at all, or at least with decency,
deliberation, and order.[19] Thus, Article VI, Section 16 (3) of the Constitution provides that each House
may determine the rules of its proceedings. Pursuant to this inherent constitutional power to
promulgate and implement its own rules of procedure, the respective rules of each house of Congress
provided for the creation of a Bicameral Conference Committee.
Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as follows:
Sec. 88. Conference Committee. In the event that the House does not agree with the Senate on the
amendment to any bill or joint resolution, the differences may be settled by the conference committees
of both chambers.
In resolving the differences with the Senate, the House panel shall, as much as possible, adhere to and
support the House Bill. If the differences with the Senate are so substantial that they materially impair
the House Bill, the panel shall report such fact to the House for the latters appropriate action.
Sec. 89. Conference Committee Reports. . . . Each report shall contain a detailed, sufficiently explicit
statement of the changes in or amendments to the subject measure.
...
The Chairman of the House panel may be interpellated on the Conference Committee Report prior to
the voting thereon. The House shall vote on the Conference Committee Report in the same manner and
procedure as it votes on a bill on third and final reading.
Rule XII, Section 35 of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives on the provision
of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses
which shall meet within ten (10) days after their composition. The President shall designate the
members of the Senate Panel in the conference committee with the approval of the Senate.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in, or amendments to the subject measure, and shall be signed by a majority of the members of
each House panel, voting separately.
A comparative presentation of the conflicting House and Senate provisions and a reconciled version
thereof with the explanatory statement of the conference committee shall be attached to the report.
...
The creation of such conference committee was apparently in response to a problem, not addressed by
any constitutional provision, where the two houses of Congress find themselves in disagreement over
changes or amendments introduced by the other house in a legislative bill. Given that one of the most
basic powers of the legislative branch is to formulate and implement its own rules of proceedings and to
discipline its members, may the Court then delve into the details of how Congress complies with its
internal rules or how it conducts its business of passing legislation? Note that in the present petitions,
the issue is not whether provisions of the rules of both houses creating the bicameral conference
committee are unconstitutional, but whether the bicameral conference committee has strictly
complied with the rules of both houses, thereby remaining within the jurisdiction conferred upon it
by Congress.
In the recent case of Farias vs. The Executive Secretary,[20] the Court En Banc, unanimously reiterated
and emphasized its adherence to the enrolled bill doctrine, thus, declining therein petitioners plea for
the Court to go behind the enrolled copy of the bill. Assailed in said case was Congresss creation of two
sets of bicameral conference committees, the lack of records of said committees proceedings, the concern of Congress to instill discipline among the members of its conference committee if it believes
alleged violation of said committees of the rules of both houses, and the disappearance or deletion of that said members violated any of its rules of proceedings. Even the expanded jurisdiction of this Court
one of the provisions in the compromise bill submitted by the bicameral conference committee. It was cannot apply to questions regarding only the internal operation of Congress, thus, the Court is wont to
argued that such irregularities in the passage of the law nullified R.A. No. 9006, or the Fair Election Act. deny a review of the internal proceedings of a co-equal branch of government.

Striking down such argument, the Court held thus:
Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are
conclusive of its due enactment. A review of cases reveals the Courts consistent adherence to the
rule. The Court finds no reason to deviate from the salutary rule in this case where the irregularities
alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2nd or
3rd Bicameral Conference Committee by the House. This Court is not the proper forum for the
enforcement of these internal rules of Congress, whether House or Senate. Parliamentary rules are
merely procedural and with their observance the courts have no concern. Whatever doubts there may
be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its
ruling in Arroyo vs. De Venecia, viz.:
Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of
Finance,[23] the Court already made the pronouncement that [i]f a change is desired in the practice [of
the Bicameral Conference Committee] it must be sought in Congress since this question is not covered
by any constitutional provision but is only an internal rule of each house. [24] To date, Congress has not
seen it fit to make such changes adverted to by the Court. It seems, therefore, that Congress finds the
practices of the bicameral conference committee to be very useful for purposes of prompt and efficient
legislative action.
Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the
bicameral conference committees, the Court deems it necessary to dwell on the issue. The Court
observes that there was a necessity for a conference committee because a comparison of the provisions
of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the other, reveals that there
were indeed disagreements. As pointed out in the petitions, said disagreements were as follows:

But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power
to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own House Bill No. 3555 House Bill No.3705 Senate Bill No. 1950
rules, in the absence of showing that there was a violation of a constitutional provision or the rights
of private individuals. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the
rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of
the body adopting them. And it has been said that Parliamentary rules are merely procedural, and
with their observance, the courts have no concern. They may be waived or disregarded by the With regard to Stand-By Authority in favor of President
legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the
action (taken by a deliberative body) when the requisite number of members have agreed to a
particular measure.[21] (Emphasis supplied) Provides for 12% VAT on Provides for 12% VAT in general Provides for a single rate of 10%
every sale of goods or on sales of goods or properties VAT on sale of goods or
properties (amending Sec. and reduced rates for sale of properties (amending Sec. 106
106 of NIRC); 12% VAT on certain locally manufactured of NIRC), 10% VAT on sale of
importation of goods goods and petroleum products services including sale of
The foregoing declaration is exactly in point with the present cases, where petitioners allege (amending Sec. 107 of and raw materials to be used in electricity by generation
irregularities committed by the conference committee in introducing changes or deleting provisions in NIRC); and 12% VAT on sale the manufacture thereof companies, transmission and
the House and Senate bills. Akin to the Farias case,[22] the present petitions also raise an issue regarding of services and use or lease (amending Sec. 106 of NIRC); distribution companies, and use
the actions taken by the conference committee on matters regarding Congress compliance with its own of properties (amending 12% VAT on importation of or lease of properties (amending
internal rules. As stated earlier, one of the most basic and inherent power of the legislature is the power Sec. 108 of NIRC) goods and reduced rates for Sec. 108 of NIRC)
to formulate rules for its proceedings and the discipline of its members. Congress is the best judge of certain imported products
how it should conduct its own business expeditiously and in the most orderly manner. It is also the sole
 including petroleum products
(amending Sec. 107 of NIRC);
and 12% VAT on sale of services
and use or lease of properties
and a reduced rate for certain
services including power
generation (amending Sec. 108
of NIRC)
With regard to the no pass-on provision
No similar provision Provides that the VAT imposed
on power generation and on
the sale of petroleum products
shall be absorbed by
generation companies or
sellers, respectively, and shall
not be passed on to consumers
With regard to 70% limit on input tax credit
Provides that the input tax No similar provision
credit for capital goods on
which a VAT has been paid
shall be equally distributed
over 5 years or the
depreciable life of such
capital goods; the input tax
credit for goods and
services other than capital
goods shall not exceed 5%
Provides that the VAT imposed
on sales of electricity by
generation companies and
services of transmission
companies and distribution
companies, as well as those of
franchise grantees of electric
utilities shall not apply to
residential
end-users. VAT shall be
absorbed by generation,
transmission, and distribution
companies.
Provides that the input tax credit
for capital goods on which a VAT
has been paid shall be equally
distributed over 5 years or the
depreciable life of such capital
goods; the input tax credit for
goods and services other than
capital goods shall not exceed
90% of the output VAT.
of the total amount of such
goods and services; and for
persons engaged in retail
trading of goods, the
allowable input tax credit
shall not exceed 11% of the
total amount of goods
purchased.
With regard to amendments to be made to NIRC provisions regarding income and excise taxes
No similar provision No similar provision Provided for amendments to
several NIRC provisions
regarding corporate income,
percentage, franchise and excise
taxes
The disagreements between the provisions in the House bills and the Senate bill were with regard to (1)
what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers, as proposed in the
Senate bill, or both the VAT imposed on electricity generation, transmission and distribution companies
and the VAT imposed on sale of petroleum products should not be passed on to consumers, as
proposed in the House bill; (3) in what manner input tax credits should be limited; (4) and whether the
NIRC provisions on corporate income taxes, percentage, franchise and excise taxes should be amended.
There being differences and/or disagreements on the foregoing provisions of the House and Senate
bills, the Bicameral Conference Committee was mandated by the rules of both houses of Congress to act
on the same by settling said differences and/or disagreements. The Bicameral Conference Committee
acted on the disagreeing provisions by making the following changes:
1. With regard to the disagreement on the rate of VAT to be imposed, it would appear from the
Conference Committee Report that the Bicameral Conference Committee tried to bridge the gap in the
difference between the 10% VAT rate proposed by the Senate, and the various rates with 12% as the
highest VAT rate proposed by the House, by striking a compromise whereby the present 10% VAT rate zero-rated sales by a VAT-registered person may at his option be refunded or credited against other
would be retained until certain conditions arise, i.e., the value-added tax collection as a percentage of internal revenue taxes, . . .
gross domestic product (GDP) of the previous year exceeds 2 4/5%, or National Government deficit as a
percentage of GDP of the previous year exceeds 1%, when the President, upon recommendation of the
Secretary of Finance shall raise the rate of VAT to 12% effective January 1, 2006.

4. With regard to the amendments to other provisions of the NIRC on corporate income tax, franchise,
percentage and excise taxes, the conference committee decided to include such amendments and
2. With regard to the disagreement on whether only the VAT imposed on electricity generation,
basically adopted the provisions found in Senate Bill No. 1950, with some changes as to the rate of the
transmission and distribution companies should not be passed on to consumers or whether both the
tax to be imposed.
VAT imposed on electricity generation, transmission and distribution companies and the VAT imposed
on sale of petroleum products may be passed on to consumers, the Bicameral Conference Committee
chose to settle such disagreement by altogether deleting from its Report any no pass-on provision.
Under the provisions of both the Rules of the House of Representatives and Senate Rules, the Bicameral
Conference Committee is mandated to settle the differences between the disagreeing provisions in the
House bill and the Senate bill. The term settle is synonymous to reconcile and harmonize.[25] To
3. With regard to the disagreement on whether input tax credits should be limited or not, the Bicameral
reconcile or harmonize disagreeing provisions, the Bicameral Conference Committee may then (a) adopt
Conference Committee decided to adopt the position of the House by putting a limitation on the
the specific provisions of either the House bill or Senate bill, (b) decide that neither provisions in the
amount of input tax that may be credited against the output tax, although it crafted its own language as
House bill or the provisions in the Senate bill would
to the amount of the limitation on input tax credits and the manner of computing the same by providing
thus: be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the
disagreeing provisions.

(A) Creditable Input Tax. . . .

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

Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly over
The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted by the
the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition cost for
Senate is retained until such time that certain conditions arise when the 12% VAT wanted by the House
such goods, excluding the VAT component thereof, exceeds one million Pesos (P1,000,000.00):
shall be imposed, appears to be a compromise to try to bridge the difference in the rate of VAT
PROVIDED, however, that if the estimated useful life of the capital good is less than five (5) years, as
proposed by the two houses of Congress. Nevertheless, such compromise is still totally within the
used for depreciation purposes, then the input VAT shall be spread over such shorter period: . . .
subject of what rate of VAT should be imposed on taxpayers.

(B) Excess Output or Input Tax. If at the end of any taxable quarter the output tax exceeds the input tax,
The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the Bicameral
the excess shall be paid by the VAT-registered person. If the input tax exceeds the output tax, the excess
Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate Panel,
shall be carried over to the succeeding quarter or quarters: PROVIDED that the input tax inclusive of
explained the reason for deleting the no pass-on provision in this wise:
input VAT carried over from the previous quarter that may be credited in every quarter shall not exceed
seventy percent (70%) of the output VAT: PROVIDED, HOWEVER, THAT any input tax attributable to
. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that no sector
should be a beneficiary of legislative grace, neither should any sector be discriminated on. The VAT is an
indirect tax. It is a pass on-tax. And lets keep it plain and simple. Lets not confuse the bill and put a no
pass-on provision. Two-thirds of the world have a VAT system and in this two-thirds of the globe, I have
yet to see a VAT with a no pass-though provision. So, the thinking of the Senate is basically simple, lets
keep the VAT simple.[26] (Emphasis supplied)
provisions, collectively considered as an amendment in the nature of a substitute, so long as such
amendment is germane to the subject of the bills before the committee. After all, its report was not
final but needed the approval of both houses of Congress to become valid as an act of the legislative
department. The charge that in this case the Conference Committee acted as a third legislative
chamber is thus without any basis.[31] (Emphasis supplied)

Rep. Teodoro Locsin further made the manifestation that the no pass-on provision never really enjoyed
the support of either House.[27]
B. R.A. No. 9337 Does Not Violate Article VI, Section 26(2) of the Constitution on the No-Amendment Rule

With regard to the amount of input tax to be credited against output tax, the Bicameral Conference
Committee came to a compromise on the percentage rate of the limitation or cap on such input tax
credit, but again, the change introduced by the Bicameral Conference Committee was totally within the
intent of both houses to put a cap on input tax that may be Article VI, Sec. 26 (2) of the Constitution, states:

credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to plug a glaring loophole in the tax policy and
No bill passed by either House shall become a law unless it has passed three readings on separate days,
administration by creating vital restrictions on the claiming of input VAT tax credits . . . and [b]y
and printed copies thereof in its final form have been distributed to its Members three days before its
introducing limitations on the claiming of tax credit, we are capping a major leakage that has placed our
passage, except when the President certifies to the necessity of its immediate enactment to meet a
collection efforts at an apparent disadvantage.[28]
public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal.
As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in Senate
Bill No. 1950, since said provisions were among those referred to it, the conference committee had to
act on the same and it basically adopted the version of the Senate.

Petitioners argument that the practice where a bicameral conference committee is allowed to add or
Thus, all the changes or modifications made by the Bicameral Conference Committee were germane to delete provisions in the House bill and the Senate bill after these had passed three readings is in effect a
subjects of the provisions referred circumvention of the no amendment rule (Sec. 26 (2), Art. VI of the 1987 Constitution), fails to convince
the Court to deviate from its ruling in the Tolentino case that:
to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee. In the
earlier cases ofPhilippine Judges Association vs. Prado[29] and Tolentino vs. Secretary of Finance,[30] the
Nor is there any reason for requiring that the Committees Report in these cases must have undergone
Court recognized the long-standing legislative practice of giving said conference committee ample
three readings in each of the two houses. If that be the case, there would be no end to negotiation since
latitude for compromising differences between the Senate and the House. Thus, in the Tolentino case, it
each house may seek modification of the compromise bill. . . .
was held that:

Art. VI. 26 (2) must, therefore, be construed as referring only to bills introduced for the first time in
. . . it is within the power of a conference committee to include in its report an entirely new provision
either house of Congress, not to the conference committee report.[32] (Emphasis supplied)
that is not found either in the House bill or in the Senate bill. If the committee can propose an
amendment consisting of one or two provisions, there is no reason why it cannot propose several
 237 Issuance of receipts or sales or commercial invoices

The Court reiterates here that the no-amendment rule refers only to the procedure to be followed by 288 Disposition of Incremental Revenue
each house of Congress with regard to bills initiated in each of said respective houses, before said bill
is transmitted to the other house for its concurrence or amendment. Verily, to construe said provision
in a way as to proscribe any further changes to a bill after one house has voted on it would lead to
absurdity as this would mean that the other house of Congress would be deprived of its constitutional
power to amend or introduce changes to said bill. Thus, Art. VI, Sec. 26 (2) of the Constitution cannot be Petitioners claim that the amendments to these provisions of the NIRC did not at all originate from the
taken to mean that the introduction by the Bicameral Conference Committee of amendments and House. They aver that House Bill No. 3555 proposed amendments only regarding Sections 106, 107, 108,
modifications to disagreeing provisions in bills that have been acted upon by both houses of Congress is 110 and 114 of the NIRC, while House Bill No. 3705 proposed amendments only to Sections 106,
prohibited. 107,108, 109, 110 and 111 of the NIRC; thus, the other sections of the NIRC which the Senate amended
but which amendments were not found in the House bills are not intended to be amended by the House
of Representatives. Hence, they argue that since the proposed amendments did not originate from the
House, such amendments are a violation of Article VI, Section 24 of the Constitution.
C. R.A. No. 9337 Does Not Violate Article VI, Section 24 of the Constitution on Exclusive Origination of
Revenue Bills

The argument does not hold water.

Coming to the issue of the validity of the amendments made regarding the NIRC provisions on corporate Article VI, Section 24 of the Constitution reads:
income taxes and percentage, excise taxes. Petitioners refer to the following provisions, to wit:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
Section 27 application, and private bills shall originate exclusively in the House of Representatives but the Senate
may propose or concur with amendments.
Rates of Income Tax on Domestic Corporation

28(A)(1) Tax on Resident Foreign Corporation

28(B)(1) Inter-corporate Dividends

In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that initiated
34(B)(1) Inter-corporate Dividends
the move for amending provisions of the NIRC dealing mainly with the value-added tax. Upon
116 Tax on Persons Exempt from VAT transmittal of said House bills to the Senate, the Senate came out with Senate Bill No. 1950 proposing
amendments not only to NIRC provisions on the value-added tax but also amendments to NIRC
117 Percentage Tax on domestic carriers and keepers of Garage
provisions on other kinds of taxes. Is the introduction by the Senate of provisions not dealing directly
119 Tax on franchises with the value- added tax, which is the only kind of tax being amended in the House bills, still within the
purview of the constitutional provision authorizing the Senate to propose or concur with amendments
121 Tax on banks and Non-Bank Financial Intermediaries to a revenue bill that originated from the House?
148 Excise Tax on manufactured oils and other fuels

151 Excise Tax on mineral products The foregoing question had been squarely answered in the Tolentino case, wherein the Court held, thus:
236 Registration requirements
. . . To begin with, it is not the law but the revenue bill which is required by the Constitution to originate
exclusively in the House of Representatives. It is important to emphasize this, because a bill originating
One of the challenges faced by the present administration is the urgent and daunting task of solving the
in the House may undergo such extensive changes in the Senate that the result may be a rewriting of
countrys serious financial problems. To do this, government expenditures must be strictly monitored
the whole. . . . At this point, what is important to note is that, as a result of the Senate action, a distinct
and controlled and revenues must be significantly increased. This may be easier said than done, but our
bill may be produced. To insist that a revenue statute and not only the bill which initiated the
fiscal authorities are still optimistic the government will be operating on a balanced budget by the year
legislative process culminating in the enactment of the law must substantially be the same as the
2009. In fact, several measures that will result to significant expenditure savings have been identified by
House bill would be to deny the Senates power not only to concur with amendments but also
the administration. It is supported with a credible package of revenue measures that include measures
to propose amendments. It would be to violate the coequality of legislative power of the two houses of
to improve tax administration and control the leakages in revenues from income taxes and the value-
Congress and in fact make the House superior to the Senate.
added tax (VAT). (Emphasis supplied)

Given, then, the power of the Senate to propose amendments, the Senate can propose its own
Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:
version even with respect to bills which are required by the Constitution to originate in the House.

...
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills, bills
authorizing an increase of the public debt, private bills and bills of local application must come from the
House of Representatives on the theory that, elected as they are from the districts, the members of the
House can be expected to be more sensitive to the local needs and problems. On the other hand, the
senators, who are elected at large, are expected to approach the same problems from the national
perspective. Both views are thereby made to bear on the enactment of such laws.[33] (Emphasis
supplied)
In the budget message of our President in the year 2005, she reiterated that we all acknowledged that
on top of our agenda must be the restoration of the health of our fiscal system.
In order to considerably lower the consolidated public sector deficit and eventually achieve a balanced
budget by the year 2009, we need to seize windows of opportunities which might seem poignant in
the beginning, but in the long run prove effective and beneficial to the overall status of our economy.
One such opportunity is a review of existing tax rates, evaluating the relevance given our present
conditions.[34] (Emphasis supplied)

Since there is no question that the revenue bill exclusively originated in the House of Representatives,
the Senate was acting within its
constitutional power to introduce amendments to the House bill when it included provisions in Senate
Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes. Verily, Article
VI, Section 24 of the Constitution does not contain any prohibition or limitation on the extent of the
amendments that may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not been
touched in the House bills are still in furtherance of the intent of the House in initiating the subject
revenue bills. The Explanatory Note of House Bill No. 1468, the very first House bill introduced on the
floor, which was later substituted by House Bill No. 3555, stated:
Notably therefore, the main purpose of the bills emanating from the House of Representatives is to
bring in sizeable revenues for the government
to supplement our countrys serious financial problems, and improve tax administration and control of
the leakages in revenues from income taxes and value-added taxes. As these house bills were
transmitted to the Senate, the latter, approaching the measures from the point of national perspective,
can introduce amendments within the purposes of those bills. It can provide for ways that would soften
the impact of the VAT measure on the consumer, i.e., by distributing the burden across all sectors
instead of putting it entirely on the shoulders of the consumers. The sponsorship speech of Sen. Ralph
Recto on why the provisions on income tax on corporation were included is worth quoting:
All in all, the proposal of the Senate Committee on Ways and Means will raise P64.3 billion in additional
revenues annually even while by mitigating prices of power, services and petroleum products.
However, not all of this will be wrung out of VAT. In fact, only P48.7 billion amount is from the VAT on
twelve goods and services. The rest of the tab P10.5 billion- will be picked by corporations.
What we therefore prescribe is a burden sharing between corporate Philippines and the consumer. Why
should the latter bear all the pain? Why should the fiscal salvation be only on the burden of the
consumer?
The corporate worlds equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise P10.5 billion a year. After that, the rate will slide back, not to
its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal medicine
will have an expiry date.
For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the tunnel,
this government will keep on making the tunnel long.
The responsibility will not rest solely on the weary shoulders of the small man. Big business will be there
to share the burden.[35]
As the Court has said, the Senate can propose amendments and in fact, the amendments made on
provisions in the tax on income of corporations are germane to the purpose of the house bills which is
to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the
reforms to the VAT system, as these sections would cushion the effects of VAT on consumers.
Considering that certain goods and services which were subject to percentage tax and excise tax would
no longer be VAT-exempt, the consumer would be burdened more as they would be paying the VAT in
addition to these taxes. Thus, there is a need to amend these sections to soften the impact of VAT.
Again, in his sponsorship speech, Sen. Recto said:
However, for power plants that run on oil, we will reduce to zero the present excise tax on bunker fuel,
to lessen the effect of a VAT on this product.
For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.
And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the VAT
chain, we will however bring down the excise tax on socially sensitive products such as diesel, bunker,
fuel and kerosene.
...
What do all these exercises point to? These are not contortions of giving to the left hand what was
taken from the right. Rather, these sprang from our concern of softening the impact of VAT, so that the
people can cushion the blow of higher prices they will have to pay as a result of VAT.[36]
The other sections amended by the Senate pertained to matters of tax administration which are
necessary for the implementation of the changes in the VAT system.
To reiterate, the sections introduced by the Senate are germane to the subject matter and purposes of
the house bills, which is to supplement our countrys fiscal deficit, among others. Thus, the Senate acted
within its power to propose those amendments.
SUBSTANTIVE ISSUES
I.
Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC, violate
the following provisions of the Constitution:
a. Article VI, Section 28(1), and
b. Article VI, Section 28(2)
A. No Undue Delegation of Legislative Power
Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in
common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108, respectively, of
the NIRC giving the President the stand-by authority to raise the VAT rate from 10% to 12% when a
certain condition is met, constitutes undue delegation of the legislative power to tax.
The assailed provisions read as follows:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or Properties.
(A) Rate and Base of Tax. There shall be levied, assessed and collected on every sale, barter or exchange
of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross selling price or
gross value in money of the goods or properties sold, bartered or exchanged, such tax to be paid by the
seller or transferor: provided, that the President, upon the recommendation of the Secretary of
Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%),
after any of the following conditions has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 %).
SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 107. Value-Added Tax on Importation of Goods.
(A) In General. There shall be levied, assessed and collected on every importation of goods a value-
added tax equivalent to ten percent (10%) based on the total value used by the Bureau of Customs in
determining tariff and customs duties, plus customs duties, excise taxes, if any, and other charges, such
tax to be paid by the importer prior to the release of such goods from customs custody: Provided, That
where the customs duties are determined on the basis of the quantity or volume of the goods, the
value-added tax shall be based on the landed cost plus excise taxes, if any: provided, further, that the
President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006,
raise the rate of value-added tax to twelve percent (12%) after any of the following conditions has
been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 %).
SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties
(A) Rate and Base of Tax. There shall be levied, assessed and collected, a value-added tax equivalent to
ten percent (10%) of gross receipts derived from the sale or exchange of services: provided, that the
President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006,
raise the rate of value-added tax to twelve percent (12%), after any of the following conditions has
been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 %). (Emphasis supplied)
Petitioners allege that the grant of the stand-by authority to the President to increase the VAT rate is a
virtual abdication by Congress of its exclusive power to tax because such delegation is not within the
purview of Section 28 (2), Article VI of the Constitution, which provides:
The Congress may, by law, authorize the President to fix within specified limits, and may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the government.
They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties as well as
on the sale or exchange of services, which cannot be included within the purview of tariffs under the
exempted delegation as the latter refers to customs duties, tolls or tribute payable upon merchandise to
the government and usually imposed on goods or merchandise imported or exported.
Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President the
legislative power to tax is contrary to republicanism. They insist that accountability, responsibility and
transparency should dictate the actions of Congress and they should not pass to the President the
decision to impose taxes. They also argue that the law also effectively nullified the Presidents power of
control, which includes the authority to set aside and nullify the acts of her subordinates like the
Secretary of Finance, by mandating the fixing of the tax rate by the President upon the recommendation
of the Secretary of Finance.
Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or create the
conditions provided by the law to bring about either or both the conditions precedent.
On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the
imposition of the 12% rate would be subject to the whim of the Secretary of Finance, an unelected
bureaucrat, contrary to the principle of no taxation without representation. They submit that the
Secretary of Finance is not mandated to give a favorable recommendation and he may not even give his
recommendation. Moreover, they allege that no guiding standards are provided in the law on what
basis and as to how he will make his recommendation. They claim, nonetheless, that any
recommendation of the Secretary of Finance can easily be brushed aside by the President since the
former is a mere alter ego of the latter, such that, ultimately, it is the President who decides whether to
impose the increased tax rate or not.
A brief discourse on the principle of non-delegation of powers is instructive.
The principle of separation of powers ordains that each of the three great branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.[37]A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as
expressed in the Latin maxim: potestas delegata non delegari potest which means what has been
delegated, cannot be delegated.[38] This doctrine is based on the ethical principle that such as delegated
power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another. [39]
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that the Legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives. The powers which Congress is prohibited from delegating are those which are strictly,
or inherently and exclusively, legislative. Purely legislative power, which can never be delegated, has
been described as the authority to make a complete law complete as to the time when it shall take
effect and as to whom it shall be applicable and to determine the expediency of its
enactment.[40] Thus, the rule is that in order that a court may be justified in holding a statute
unconstitutional as a delegation of legislative power, it must appear that the power involved is purely
legislative in nature that is, one appertaining exclusively to the legislative department. It is the nature of
the power, and not the liability of its use or the manner of its exercise, which determines the validity of
its delegation.
Nonetheless, the general rule barring delegation of legislative powers is subject to the following
recognized limitations or exceptions:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
In every case of permissible delegation, there must be a showing that the delegation itself is valid. It is
valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate;[41] and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the performance of his
functions.[42] A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected.[43] Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.[44]
In People vs. Vera,[45] the Court, through eminent Justice Jose P. Laurel, expounded on the concept and
extent of delegation of power in this wise:
In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature.
...
The true distinction, says Judge Ranney, is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to
its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made.
...
It is contended, however, that a legislative act may be made to the effect as law after it leaves the hands
of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community. In Wayman vs.
Southard, the Supreme Court of the United States ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise. The power to ascertain facts is such a power which
may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or
conditions as the basis of the taking into effect of a law. That is a mental process common to all
branches of the government. Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age, the orthodox pronouncement of Judge Cooley in
his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language speaking of declaration of legislative power
to administrative agencies: The principle which permits the legislature to provide that the
administrative agent may determine when the circumstances are such as require the application of a
law is defended upon the ground that at the time this authority is granted, the rule of public policy,
which is the essence of the legislative act, is determined by the legislature. In other words, the
legislature, as it is its duty to do, determines that, under given circumstances, certain executive or
administrative action is to be taken, and that, under other circumstances, different or no action at all
is to be taken. What is thus left to the administrative official is not the legislative determination of
what public policy demands, but simply the ascertainment of what the facts of the case require to be
done according to the terms of the law by which he is governed. The efficiency of an Act as a
declaration of legislative will must, of course, come from Congress, but the ascertainment of the
contingency upon which the Act shall take effect may be left to such agencies as it may designate. The
legislature, then, may provide that a law shall take effect upon the happening of future specified
contingencies leaving to some other person or body the power to determine when the specified
contingency has arisen. (Emphasis supplied).[46]
In Edu vs. Ericta,[47] the Court reiterated:
What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them; the test is the completeness of the statute in all its terms and provisions when it leaves the hands
of the legislature. To determine whether or not there is an undue delegation of legislative power, the
inquiry must be directed to the scope and definiteness of the measure enacted. The legislative does not
abdicate its functions when it describes what job must be done, who is to do it, and what is the scope
of his authority. For a complex economy, that may be the only way in which the legislative process can
go forward. A distinction has rightfully been made between delegation of power to make the laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be done,
and delegation of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be regarded as
denying the legislature the necessary resources of flexibility and practicability. (Emphasis supplied).[48]
Clearly, the legislature may delegate to executive officers or bodies the power to determine certain facts
or conditions, or the happening of contingencies, on which the operation of a statute is, by its terms,
made to depend, but the legislature must prescribe sufficient standards, policies or limitations on their
authority.[49] While the power to tax cannot be delegated to executive agencies, details as to the
enforcement and administration of an exercise of such power may be left to them, including the power
to determine the existence of facts on which its operation depends. [50]
The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty of
correlating information and making recommendations is the kind of subsidiary activity which the
legislature may perform through its members, or which it may delegate to others to perform. Intelligent
legislation on the complicated problems of modern society is impossible in the absence of accurate
information on the part of the legislators, and any reasonable method of securing such information is
proper.[51] The Constitution as a continuously operative charter of government does not require that
Congress find for itself
every fact upon which it desires to base legislative action or that it make for itself detailed
determinations which it has declared to be prerequisite to application of legislative policy to particular
facts and circumstances impossible for Congress itself properly to investigate.[52]
In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5 and 6
which reads as follows:
That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions
has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 %).
The case before the Court is not a delegation of legislative power. It is simply a delegation of
ascertainment of facts upon which enforcement and administration of the increase rate under the law is
contingent. The legislature has made the operation of the 12% rate effective January 1, 2006,
contingent upon a specified fact or condition. It leaves the entire operation or non-operation of the 12%
rate upon factual matters outside of the control of the executive.
No discretion would be exercised by the President. Highlighting the absence of discretion is the fact that
the word shall is used in the common proviso. The use of the word shall connotes a mandatory
order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of
discretion.[53] Where the law is clear and unambiguous, it must be taken to mean exactly what it says,
and courts have no choice but to see to it that the mandate is obeyed.[54]
Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the existence
of any of the conditions specified by Congress. This is a duty which cannot be evaded by the President.
Inasmuch as the law specifically uses the word shall, the exercise of discretion by the President does not
come into play. It is a clear directive to impose the 12% VAT rate when the specified conditions are
present. The time of taking into effect of the 12% VAT rate is based on the happening of a certain
specified contingency, or upon the ascertainment of certain facts or conditions by a person or body
other than the legislature itself.
The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that the law
effectively nullified the Presidents power of control over the Secretary of Finance by mandating the
fixing of the tax rate by the President upon the recommendation of the Secretary of Finance. The Court
cannot also subscribe to the position of petitioners
Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase upon the
recommendation of the Secretary of Finance. Neither does the Court find persuasive the submission of
petitioners Escudero, et al. that any recommendation by the Secretary of Finance can easily be brushed
aside by the President since the former is a mere alter ego of the latter.
When one speaks of the Secretary of Finance as the alter ego of the President, it simply means that
as head of the Department of Finance he is the assistant and agent of the Chief Executive. The
multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such departments, such as the
Department of Finance, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. The
Secretary of Finance, as such, occupies a political position and holds office in an advisory capacity, and,
in the language of Thomas Jefferson, "should be of the President's bosom confidence" and, in the
language of Attorney-General Cushing, is subject to the direction of the President."[55]
simply execute the legislative policy. That Congress chose to do so in such a manner is not within the
province of the Court to inquire into, its task being to interpret the law. [59]
The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause, influence
or create the conditions to bring about either or both the conditions precedent does not deserve any
merit as this argument is highly speculative. The Court does not rule on allegations which are manifestly
conjectural, as these may not exist at all. The Court deals with facts, not fancies; on realities, not
appearances. When the Court acts on appearances instead of realities, justice and law will be short-
lived.

In the present case, in making his recommendation to the President on the existence of either of the
two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her
B. The 12% Increase VAT Rate Does Not Impose an Unfair and Unnecessary Additional Tax Burden
subordinate. In such instance, he is not subject to the power of control and direction of the
President. He is acting as the agent of the legislative department, to determine and declare the event
upon which its expressed will is to take effect.[56] The Secretary of Finance becomes the means or tool
by which legislative policy is determined and implemented, considering that he possesses all the
facilities to gather data and information and has a much broader perspective to properly evaluate them.
Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and additional
His function is to gather and collate statistical data and other pertinent information and verify if any of
tax burden on the people. Petitioners also argue that the 12% increase, dependent on any of the 2
the two conditions laid out by Congress is present. His personality in such instance is in reality but a
conditions set forth in the contested provisions, is ambiguous because it does not state if the VAT rate
projection of that of Congress. Thus, being the agent of Congress and not of the President, the President
would be returned to the original 10% if the rates are no longer satisfied. Petitioners also argue that
cannot alter or modify or nullify, or set aside the findings of the Secretary of Finance and to substitute
such rate is unfair and unreasonable, as the people are unsure of the applicable VAT rate from year to
the judgment of the former for that of the latter.
year.

Congress simply granted the Secretary of Finance the authority to ascertain the existence of a fact,
Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set
namely, whether by December 31, 2005, the value-added tax collection as a percentage of Gross
forth therein are satisfied, the President shall increase the VAT rate to 12%. The provisions of the law
Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (24/5%) or the national
are clear. It does not provide for a return to the 10% rate nor does it empower the President to so revert
government deficit as a percentage of GDP of the previous year exceeds one and one-half percent (1%).
if, after the rate is increased to 12%, the VAT collection goes below the 2 4/5 of the GDP of the previous
If either of these two instances has occurred, the Secretary of Finance, by legislative mandate, must
year or that the national government deficit as a percentage of GDP of the previous year does not
submit such information to the President. Then the 12% VAT rate must be imposed by the President
exceed 1%.
effective January 1, 2006. There is no undue delegation of legislative power but only of the discretion
as to the execution of a law. This is constitutionally permissible.[57] Congress does not abdicate its
functions or unduly delegate power when it describes what job must be done, who must do it, and what
is the scope of his authority; in our complex economy that is frequently the only way in which the Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations
legislative process can go forward.[58] be introduced where none is provided for. Rewriting the law is a forbidden ground that only Congress
may tread upon.[60]

As to the argument of petitioners ABAKADA GURO Party List, et al. that delegating to the President the
legislative power to tax is contrary to the principle of republicanism, the same deserves scant Thus, in the absence of any provision providing for a return to the 10% rate, which in this case the Court
consideration. Congress did not delegate the power to tax but the mere implementation of the law. The finds none, petitioners argument is, at best, purely speculative. There is no basis for petitioners fear of a
intent and will to increase the VAT rate to 12% came from Congress and the task of the President is to fluctuating VAT rate because the law itself does not provide that the rate should go back to 10% if the
conditions provided in Sections 4, 5 and 6 are no longer present. The rule is that where the provision of
the law is clear and unambiguous, so that there is no occasion for the court's seeking the legislative
intent, the law must be taken as it is, devoid of judicial addition or subtraction. [61]
Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to the
President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should be based on
fiscal adequacy.
Petitioners obviously overlooked that increase in VAT collection is not the only condition. There is
another condition, i.e., the national government deficit as a percentage of GDP of the previous year
exceeds one and one-half percent (1 %).
Respondents explained the philosophy behind these alternative conditions:
1. VAT/GDP Ratio > 2.8%
The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP is less
than 2.8%, it means that government has weak or no capability of implementing the VAT or that VAT is
not effective in the function of the tax collection. Therefore, there is no value to increase it to 12%
because such action will also be ineffectual.
2. Natl Govt Deficit/GDP >1.5%
The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition of
government has reached a relatively sound position or is towards the direction of a balanced budget
position. Therefore, there is no need to increase the VAT rate since the fiscal house is in a relatively
healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a need to increase the
VAT rate.[62]
That the first condition amounts to an incentive to the President to increase the VAT collection does not
render it unconstitutional so long as there is a public purpose for which the law was passed, which in
this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need for a raise in revenue.
The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated by Adam
Smith in his Canons of Taxation (1776), as:
IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the people
as little as possible over and above what it brings into the public treasury of the state. [63]
It simply means that sources of revenues must be adequate to meet government expenditures and their
variations.[64]
The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe. During the
Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly depicted the
countrys gloomy state of economic affairs, thus:
First, let me explain the position that the Philippines finds itself in right now. We are in a position where
90 percent of our revenue is used for debt service. So, for every peso of revenue that we currently raise,
90 goes to debt service. Thats interest plus amortization of our debt. So clearly, this is not a sustainable
situation. Thats the first fact.
The second fact is that our debt to GDP level is way out of line compared to other peer countries that
borrow money from that international financial markets. Our debt to GDP is approximately equal to our
GDP. Again, that shows you that this is not a sustainable situation.
The third thing that Id like to point out is the environment that we are presently operating in is not as
benign as what it used to be the past five years.
What do I mean by that?
In the past five years, weve been lucky because we were operating in a period of basically global growth
and low interest rates. The past few months, we have seen an inching up, in fact, a rapid increase in the
In the same vein, the Court in this case will not dawdle on the purpose of Congress or the executive
interest rates in the leading economies of the world. And, therefore, our ability to borrow at reasonable
policy, given that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency of
prices is going to be challenged. In fact, ultimately, the question is our ability to access the financial
legislation.[67]
markets.

II.
When the President made her speech in July last year, the environment was not as bad as it is now, at
least based on the forecast of most financial institutions. So, we were assuming that raising 80 billion Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and Section
would put us in a position where we can then convince them to improve our ability to borrow at lower 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions of the
rates. But conditions have changed on us because the interest rates have gone up. In fact, just within Constitution:
this room, we tried to access the market for a billion dollars because for this year alone,
the Philippines will have to borrow 4 billion dollars. Of that amount, we have borrowed 1.5 billion. We
issued last January a 25-year bond at 9.7 percent cost. We were trying to access last week and the
a. Article VI, Section 28(1), and
market was not as favorable and up to now we have not accessed and we might pull back because the
conditions are not very good. b. Article III, Section 1

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

The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable
catastrophe. Whether the law is indeed sufficient to answer the states economic dilemma is not for the
Court to judge. In the Farias case, the Court refused to consider the various arguments raised therein
that dwelt on the wisdom of Section 14 of R.A. No. 9006 (The Fair Election Act), pronouncing that:
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No. 9337,
amending Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending Section 114 (C) of the
NIRC are arbitrary, oppressive, excessive and confiscatory. Their argument is premised on the
constitutional right against deprivation of life, liberty of property without due process of law, as
embodied in Article III, Section 1 of the Constitution.

. . . policy matters are not the concern of the Court. Government policy is within the exclusive dominion
of the political branches of the government. It is not for this Court to look into the wisdom or propriety
of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on
sound economic theory, whether it is the best means to achieve the desired results, whether, in short,
the legislative discretion within its prescribed limits should be exercised in a particular manner are
matters for the judgment of the legislature, and the serious conflict of opinions does not suffice to bring
them within the range of judicial cognizance.[66]
Petitioners also contend that these provisions violate the constitutional guarantee of equal protection
of the law.
The doctrine is that where the due process and equal protection clauses are invoked, considering that
they are not fixed rules but rather broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a showing, the presumption of validity must
prevail.[68]
Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the amount of
input tax that may be credited against the output tax. It states, in part: [P]rovided, that the input tax
inclusive of the input VAT carried over from the previous quarter that may be credited in every quarter
shall not exceed seventy percent (70%) of the output VAT:
Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax
due from or paid by a VAT-registered person on the importation of goods or local purchase of good and
services, including lease or use of property, in the course of trade or business, from a VAT-registered
person, and Output Tax is the value-added tax due on the sale or lease of taxable goods or properties or
services by any person registered or required to register under the law.
Therefore, petitioners argument must be rejected.
On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the 70%
limitation on the input tax. According to petitioner, the limitation on the creditable input tax in effect
allows VAT-registered establishments to retain a portion of the taxes they collect, which violates the
principle that tax collection and revenue should be for public purposes and expenditures
As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when he buys
goods. Output tax meanwhile is the tax due to the person when he sells goods. In computing the VAT
payable, three possible scenarios may arise:

First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the input
Petitioners claim that the contested sections impose limitations on the amount of input tax that may be
taxes that he paid and passed on by the suppliers, then no payment is required;
claimed. In effect, a portion of the input tax that has already been paid cannot now be credited against
the output tax.

Second, when the output taxes exceed the input taxes, the person shall be liable for the excess, which
has to be paid to the Bureau of Internal Revenue (BIR);[69] and
Petitioners argument is not absolute. It assumes that the input tax exceeds 70% of the output tax, and
therefore, the input tax in excess of 70% remains uncredited. However, to the extent that the input tax
is less than 70% of the output tax, then 100% of such input tax is still creditable.
Third, if the input taxes exceed the output taxes, the excess shall be carried over to the succeeding
quarter or quarters. Should the input taxes result from zero-rated or effectively zero-rated transactions,
any excess over the output taxes shall instead be refunded to the taxpayer or credited against other
More importantly, the excess input tax, if any, is retained in a businesss books of accounts and remains
internal revenue taxes, at the taxpayers option.[70]
creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B), which provides that if
the input tax exceeds the output tax, the excess shall be carried over to the succeeding quarter or
quarters. In addition, Section 112(B) allows a VAT-registered person to apply for the issuance of a tax
credit certificate or refund for any unused input taxes, to the extent that such input taxes have not been Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person can credit
applied against the output taxes. Such unused input tax may be used in payment of his other internal his input tax only up to the extent of 70% of the output tax. In laymans term, the value-added taxes that
revenue taxes. a person/taxpayer paid and passed on to him by a seller can only be credited up to 70% of the value-
added taxes that is due to him on a taxable transaction. There is no retention of any tax collection
because the person/taxpayer has already previously paid the input tax to a seller, and the seller will
subsequently remit such input tax to the BIR. The party directly liable for the payment of the tax is the
The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners
seller.[71] What only needs to be done is for the person/taxpayer to apply or credit these input taxes, as
exaggeratedly contend. Their analysis of the effect of the 70% limitation is incomplete and one-sided. It
evidenced by receipts, against his output taxes.
ends at the net effect that there will be unapplied/unutilized inputs VAT for a given quarter. It does not
proceed further to the fact that such unapplied/unutilized input tax may be credited in the subsequent
periods as allowed by the carry-over provision of Section 110(B) or that it may later on be refunded
through a tax credit certificate under Section 112(B). Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax partakes the
nature of a property that may not be confiscated, appropriated, or limited without due process of law.
The input tax is not a property or a property right within the constitutional purview of the due process
clause. A VAT-registered persons entitlement to the creditable input tax is a mere statutory privilege.
The foregoing section imposes a 60-month period within which to amortize the creditable input tax on
purchase or importation of capital goods with acquisition cost of P1 Million pesos, exclusive of the VAT
component. Such spread out only poses a delay in the crediting of the input tax. Petitioners argument is
The distinction between statutory privileges and vested rights must be borne in mind for persons have
without basis because the taxpayer is not permanently deprived of his privilege to credit the input tax.
no vested rights in statutory privileges. The state may change or take away rights, which were created
by the law of the state, although it may not take away property, which was vested by virtue of such
rights.[72]
It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in this case
amounts to a 4-year interest-free loan to the government.[76] In the same breath, Congress also justified
its move by saying that the provision was designed to raise an annual revenue of 22.6 billion. [77] The
Under the previous system of single-stage taxation, taxes paid at every level of distribution are not
legislature also dispelled the fear that the provision will fend off foreign investments, saying that foreign
recoverable from the taxes payable, although it becomes part of the cost, which is deductible from the
investors have other tax incentives provided by law, and citing the case of China, where despite a 17.5%
gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all sales, it was
non-creditable VAT, foreign investments were not deterred. [78] Again, for whatever is the purpose of the
then that the crediting of the input tax paid on purchase or importation of goods and services by VAT-
60-month amortization, this involves executive economic policy and legislative wisdom in which the
registered persons against the output tax was introduced. [73] This was adopted by the Expanded VAT
Court cannot intervene.
Law (R.A. No. 7716),[74] and The Tax Reform Act of 1997 (R.A. No. 8424).[75] The right to credit input tax
as against the output tax is clearly a privilege created by law, a privilege that also the law can remove, or
in this case, limit.
With regard to the 5% creditable withholding tax imposed on payments made by the government for
taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads:

Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A. No. 9337,
amending Section 110(A) of the NIRC, which provides:
SEC. 114. Return and Payment of Value-added Tax.

SEC. 110. Tax Credits.

(C) Withholding of Value-added Tax. The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs) shall,
before making payment on account of each purchase of goods and services which are subject to the
(A) Creditable Input Tax.
value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold a final value-added
tax at the rate of five percent (5%) of the gross payment thereof: Provided, That the payment for lease
or use of properties or property rights to nonresident owners shall be subject to ten percent (10%)
Provided, That the input tax on goods purchased or imported in a calendar month for use in trade or withholding tax at the time of payment. For purposes of this Section, the payor or person in control of
business for which deduction for depreciation is allowed under this Code, shall be spread evenly over the payment shall be considered as the withholding agent.
the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition cost for
such goods, excluding the VAT component thereof, exceeds One million pesos
(P1,000,000.00): Provided, however, That if the estimated useful life of the capital goods is less than five
The value-added tax withheld under this Section shall be remitted within ten (10) days following the end
(5) years, as used for depreciation purposes, then the input VAT shall be spread over such a shorter
of the month the withholding was made.
period: Provided, finally, That in the case of purchase of services, lease or use of properties, the input
tax shall be creditable to the purchaser, lessee or license upon payment of the compensation, rental,
royalty or fee.
Section 114(C) merely provides a method of collection, or as stated by respondents, a more simplified
VAT withholding system. The government in this case is constituted as a withholding agent with respect
to their payments for goods and services.
Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be withheld
-- 3% on gross payments for purchases of goods; 6% on gross payments for services supplied by
contractors other than by public works contractors; 8.5% on gross payments for services supplied by
public work contractors; or 10% on payment for the lease or use of properties or property rights to
nonresident owners. Under the present Section 114(C), these different rates, except for the 10% on
lease or property rights payment to nonresidents, were deleted, and a uniform rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as opposed to
creditable, means full. Thus, it is provided in Section 114(C): final value-added tax at the rate of five
percent (5%).
In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the
concept of final withholding tax on income was explained, to wit:
SECTION 2.57. Withholding of Tax at Source
(A) Final Withholding Tax. Under the final withholding tax system the amount of income tax withheld by
the withholding agent is constituted as full and final payment of the income tax due from the payee on
the said income. The liability for payment of the tax rests primarily on the payor as a withholding agent.
Thus, in case of his failure to withhold the tax or in case of underwithholding, the deficiency tax shall be
collected from the payor/withholding agent.
(B) Creditable Withholding Tax. Under the creditable withholding tax system, taxes withheld on certain
income payments are intended to equal or at least approximate the tax due of the payee on said
income. Taxes withheld on income payments covered by the expanded withholding tax (referred to in
Sec. 2.57.2 of these regulations) and compensation income (referred to in Sec. 2.78 also of these
regulations) are creditable in nature.
As applied to value-added tax, this means that taxable transactions with the government are subject to
a 5% rate, which constitutes as full payment of the tax payable on the transaction. This represents the
net VAT payable of the seller. The other 5% effectively accounts for the standard input VAT (deemed
input VAT), in lieu of the actual input VAT directly or attributable to the taxable transaction. [79]
The Court need not explore the rationale behind the provision. It is clear that Congress intended to treat
differently taxable transactions with the government.[80] This is supported by the fact that under the old
provision, the 5% tax withheld by the government remains creditable against the tax liability of the
seller or contractor, to wit:
SEC. 114. Return and Payment of Value-added Tax.
(C) Withholding of Creditable Value-added Tax. The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs) shall,
before making payment on account of each purchase of goods from sellers and services rendered by
contractors which are subject to the value-added tax imposed in Sections 106 and 108 of this Code,
deduct and withhold the value-added tax due at the rate of three percent (3%) of the gross payment for
the purchase of goods and six percent (6%) on gross receipts for services rendered by contractors on
every sale or installment payment which shall be creditable against the value-added tax liability of the
seller or contractor: Provided, however, That in the case of government public works contractors, the
withholding rate shall be eight and one-half percent (8.5%): Provided, further, That the payment for
lease or use of properties or property rights to nonresident owners shall be subject to ten percent (10%)
withholding tax at the time of payment. For this purpose, the payor or person in control of the payment
shall be considered as the withholding agent.
The valued-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits Congresss
intention to treat transactions with the government differently. Since it has not been shown that the
class subject to the 5% final withholding tax has been unreasonably narrowed, there is no reason to
invalidate the provision. Petitioners, as petroleum dealers, are not the only ones subjected to the 5%
final withholding tax. It applies to all those who deal with the government.
Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue methods of assessment, valuation and collection. Petitioners alleged distinctions are based on variables
Regulations No. 14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the BIR, that bear different consequences. While the implementation of the law may yield varying end results
provides that should the actual input tax exceed 5% of gross payments, the excess may form part of the depending on ones profit margin and value-added, the Court cannot go beyond what the legislature has
cost. Equally, should the actual input tax be less than 5%, the difference is treated as income. [81] laid down and interfere with the affairs of business.

The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection. What the clause
Petitioners also argue that by imposing a limitation on the creditable input tax, the government gets to
requires is equality among equals as determined according to a valid classification. By classification is
tax a profit or value-added even if there is no profit or value-added.
meant the grouping of persons or things similar to each other in certain particulars and different from
all others in these same particulars.[85]

Petitioners stance is purely hypothetical, argumentative, and again, one-sided. The Court will not
engage in a legal joust where premises are what ifs, arguments, theoretical and facts, uncertain. Any
Petitioners brought to the Courts attention the introduction of Senate Bill No. 2038 by Sens. S.R. Osmea
disquisition by the Court on this point will only be, as Shakespeare describes life in Macbeth,[82] full of
III and Ma. Ana Consuelo A.S. Madrigal on June 6, 2005, and House Bill No. 4493 by Rep. Eric D. Singson.
sound and fury, signifying nothing.
The proposed legislation seeks to amend the 70% limitation by increasing the same to 90%. This,
according to petitioners, supports their stance that the 70% limitation is arbitrary and confiscatory. On
this score, suffice it to say that these are still proposed legislations. Until Congress amends the law, and
Whats more, petitioners contention assumes the proposition that there is no profit or value-added. It absent any unequivocal basis for its unconstitutionality, the 70% limitation stays.
need not take an astute businessman to know that it is a matter of exception that a business will sell
goods or services without profit or value-added. It cannot be overstressed that a business is created
precisely for profit.
B. Uniformity and Equitability of Taxation

The equal protection clause under the Constitution means that no person or class of persons shall be
deprived of the same protection of laws which is enjoyed by other persons or other classes in the same
place and in like circumstances.[83] Article VI, Section 28(1) of the Constitution reads:

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

Uniformity in taxation means that all taxable articles or kinds of property of the same class shall be
taxed at the same rate. Different articles may be taxed at different amounts provided that the rate is
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input
uniform on the same class everywhere with all people at all times.[86]
tax, or invests in capital equipment, or has several transactions with the government, is not based on
real and substantial differences to meet a valid classification.

In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all goods and
services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108, respectively, of the
The argument is pedantic, if not outright baseless. The law does not make any classification in the
NIRC, provide for a rate of 10% (or 12%) on sale of goods and properties, importation of goods, and sale
subject of taxation, the kind of property, the rates to be levied or the amounts to be raised, the
of services and use or lease of properties. These same sections also provide for a 0% rate on certain
sales and transaction.
Neither does the law make any distinction as to the type of industry or trade that will bear the 70%
limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of capital goods
or the 5% final withholding tax by the government. It must be stressed that the rule of uniform taxation
does not deprive Congress of the power to classify subjects of taxation, and only demands uniformity
within the particular class.[87]
R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of 0% or 10%
(or 12%) does not apply to sales of goods or services with gross annual sales or receipts not
exceedingP1,500,000.00.[88] Also, basic marine and agricultural food products in their original state are
still not subject to the tax,[89] thus ensuring that prices at the grassroots level will remain accessible. As
was stated inKapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan:[90]
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-
sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of farm
and marine products, so that the costs of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within the reach of the general public.
It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and unduly
favors those with high profit margins. Congress was not oblivious to this. Thus, to equalize the weighty
burden the law entails, the law, under Section 116, imposed a 3% percentage tax on VAT-exempt
persons under Section 109(v), i.e., transactions with gross annual sales and/or receipts not
exceeding P1.5 Million. This acts as a equalizer because in effect, bigger businesses that qualify for VAT
coverage and VAT-exempt taxpayers stand on equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the tax on
those previously exempt. Excise taxes on petroleum products [91] and natural gas[92] were reduced.
Percentage tax on domestic carriers was removed.[93] Power producers are now exempt from paying
franchise tax.[94]
Aside from these, Congress also increased the income tax rates of corporations, in order to distribute
the burden of taxation. Domestic, foreign, and non-resident corporations are now subject to a 35%
income tax rate, from a previous 32%.[95] Intercorporate dividends of non-resident foreign corporations
are still subject to 15% final withholding tax but the tax credit allowed on the corporations domicile was
increased to 20%.[96] The Philippine Amusement and Gaming Corporation (PAGCOR) is not exempt from
income taxes anymore.[97] Even the sale by an artist of his works or services performed for the
production of such works was not spared.
All these were designed to ease, as well as spread out, the burden of taxation, which would otherwise
rest largely on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is equitable.
C. Progressivity of Taxation
Lastly, petitioners contend that the limitation on the creditable input tax is anything but regressive. It is
the smaller business with higher input tax-output tax ratio that will suffer the consequences.
Progressive taxation is built on the principle of the taxpayers ability to pay. This principle was also lifted
from Adam Smiths Canons of Taxation, and it states:
I. The subjects of every state ought to contribute towards the support of the government, as nearly as
possible, in proportion to their respective abilities; that is, in proportion to the revenue which they
respectively enjoy under the protection of the state.
Taxation is progressive when its rate goes up depending on the resources of the person affected.[98]
The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle of
progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the consumer or
business for every goods bought or services enjoyed is the same regardless of income. In
other words, the VAT paid eats the same portion of an income, whether big or small. The disparity lies in
the income earned by a person or profit margin marked by a business, such that the higher the income
or profit margin, the smaller the portion of the income or profit that is eaten by VAT. A converso, the
lower the income or profit margin, the bigger the part that the VAT eats away. At the end of the day, it
is really the lower income group or businesses with low-profit margins that is always hardest hit.
 Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for all
political or social ills; We should not forget that the Constitution has judiciously allocated the powers of
Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the VAT.
government to three distinct and separate compartments; and that judicial interpretation has tended to
What it simply provides is that Congress shall "evolve a progressive system of taxation." The Court
the preservation of the independence of the three, and a zealous regard of the prerogatives of each,
stated in the Tolentino case, thus:
knowing full well that one is not the guardian of the others and that, for official wrong-doing, each may
be brought to account, either by impeachment, trial or by the ballot box.[100]

The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall evolve a progressive system of taxation. The
constitutional provision has been interpreted to mean simply that direct taxes are . . . to be preferred
[and] as much as possible, indirect taxes should be minimized. (E. FERNANDO, THE CONSTITUTION OF The words of the Court in Vera vs. Avelino[101] holds true then, as it still holds true now. All things
THE PHILIPPINES 221 (Second ed. 1977)) Indeed, the mandate to Congress is not to prescribe, but to considered, there is no raison d'tre for the unconstitutionality of R.A. No. 9337.
evolve, a progressive tax system. Otherwise, sales taxes, which perhaps are the oldest form of indirect
taxes, would have been prohibited with the proclamation of Art. VIII, 17 (1) of the 1973 Constitution
from which the present Art. VI, 28 (1) was taken. Sales taxes are also regressive. WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos. 168056,
168207, 168461, 168463, and 168730, are hereby DISMISSED.

Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the case
of the VAT, the law minimizes the regressive effects of this imposition by providing for zero rating of
certain transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while granting exemptions to
other transactions. (R.A. No. 7716, 4 amending 103 of the NIRC)[99]
There being no constitutional impediment to the full enforcement and implementation of R.A. No. 9337,
the temporary restraining order issued by the Court on July 1, 2005 is LIFTED upon finality of herein
decision.

SO ORDERED.

CONCLUSION

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

Associate Justice

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

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

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, G.R. No. 171409

TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J.
PROF. RANDOLF S. DAVID, LORENZO TA„ADA III, RONALD G.R. No. 171396
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN,
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R.
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Present: MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
Petitioners, CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO,
LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V.
PANGANIBAN, C.J., MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
- versus - *
PUNO, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
QUISUMBING, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG,
YNARES-SANTIAGO,
Petitioners,
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND SANDOVAL-GUTIERREZ,
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO - versus -
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL CARPIO,
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
AUSTRIA-MARTINEZ, CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, CORONA,
ARTURO LOMIBAO, CHIEF PNP,
Respondents. CARPIO MORALES, G.R. No. 171485
Respondents.
x-------------------------------------------------x CALLEJO, SR.,
x-------------------------------------------------x
NI„EZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., AZCUNA,
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
INC.,
TINGA, ELMER C. LABOG AND SECRETARY GENERAL JOEL
Petitioners, MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS Ð
CHICO-NAZARIO, KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS
GARCIA, and NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
VELASCO, JJ. MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
- versus -
Petitioners,
Promulgated: - versus -

HONORABLE SECRETARY EDUARDO ERMITA AND

HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, May 3, 2006
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL- GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS G.R. No. 171424
ARROYO, THE HONORABLE EXECUTIVE SECRETARY, PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO
EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN
DIRECTOR GENERAL, ARTURO LOMIBAO, HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
Respondents.
CAPACITY AS EXECUTIVE SECRETARY,
x-------------------------------------------------x
Respondents.
G.R. No. 171483
ALTERNATIVE LAW GROUPS, INC. (ALG),
x---------------------------------------------------------------------------------------------x
Petitioner,

- versus -
DECISION
G.R. No. 171400
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, SANDOVAL-GUTIERREZ, J.:

Respondents.

x-------------------------------------------------x All powers need some restraint; practical adjustments rather than rigid formula are
G.R. No. 171489
necessary.[1] Superior strength Ð the use of force Ð cannot make wrongs into rights. In this regard, the
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO
courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.
R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-
VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
Chief Justice Artemio V. PanganibanÕs philosophy of liberty is thus most relevant. He said: ÒIn cases
GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP),
involving liberty, the scales of justice should weigh heavily against government and in favor of the
Petitioners, poor, the oppressed, the marginalized, the dispossessed and the weak.Ó Laws and actions that restrict
fundamental rights come to the courts Òwith a heavy presumption against their constitutional
- versus -
validity.Ó[2]
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials
CAPACITY AS PNP CHIEF,
of the Government, in their professed efforts to defend and preserve democratic institutions, are
Respondents. actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
x-------------------------------------------------x

LOREN B. LEGARDA,

Petitioner,
Once again, the Court is faced with an age-old but persistently modern problem. How does the
- versus - Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with
the degree oflaw, without which, liberty becomes license?[3]
 On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: ÒThe President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,Ó and in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my direction; and as provided
in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists Ð the historical enemies of the democratic Philippine State Ð
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, this series of actions is hurting the Philippine State Ð by obstructing governance
including hindering the growth of the economy and sabotaging the peopleÕs confidence in
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State Ð and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the peopleÕs confidence in the government and
their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of
the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and
suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all
these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which
reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers, leftist
insurgents of the New PeopleÕs Army (NPA), and some members of the political opposition in a plot to
unseat or assassinate President Arroyo.[4] They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the
issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitionersÕ
counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to
the President in determining the necessity of calling out the armed forces. He emphasized that none of
the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not
respondentsÕ task to state the facts behind the questioned Proclamation, however, they are presenting
the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood
mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called upon the people to Òshow and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in
protest, but also by wearing red bands on our left arms.Ó [5]
On February 17, 2006, the authorities got hold of a document entitled ÒOplan Hackle I Ó which detailed
plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some cabinet members and President
Arroyo herself.[6] Upon the advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the
PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings between
members of the Magdalo Group and the National PeopleÕs Army (NPA), a tape recorder, audio cassette
cartridges, diskettes, and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan announced
through DZRH that the ÒMagdaloÕs D-Day would be on February 24, 2006, the 20th Anniversary of Edsa
I.Ó
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to ÒdisavowÓ any defection. The latter promptly obeyed and issued a public
statement: ÒAll SAF units are under the effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty.Ó
On the same day, at the house of former Congressman Peping Cojuangco, President Cory AquinoÕs
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic,
called a U.S. government official about his groupÕs plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
ArmyÕs elite Scout Ranger. Lim said Òit was all systems go for the planned movement against
Arroyo.Ó[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief
of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the
rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and
the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio ÒKa RogerÓ Rosal declared: ÒThe Communist Party and revolutionary movement
and the entire people look forward to the possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it.Ó[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: ÒAnti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field.Ó He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the PresidentÕs ouster is nearing its
concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No.
5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro
Manila radicals and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the AFP
and the PNP to account for all their men and ensure that the chain of command remains solid and
undivided. To protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the PresidentÕs mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that Òwarrantless arrests and take-
over of facilities, including media, can already be implemented.Ó[11]
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of
protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang
Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging
at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants.
The same police action was used against the protesters marching forward to Cubao, Quezon City and to
the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an
EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. [12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of
their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.
David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribuneoffices in Manila. The raiding team confiscated news stories by reporters, documents, pictures,
and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside
the editorial and business offices of the newspaper; while policemen from the Manila Police District
were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is Òmeant to show a Ôstrong
presence,Õ to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government.Ó The PNP warned that it would take over any media organization that would
not follow Òstandards set by the government during the state of national emergency.Ó Director
General Lomibao stated thatÒif they do not follow the standards Ð and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017 Ð we will recommend a Ôtakeover.ÕÓ National TelecommunicationsÕ
Commissioner Ronald Solis urged television and radio networks to ÒcooperateÓ with the government
for the duration of the state of national emergency. He asked for Òbalanced reportingÓ from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates
rules set out for media coverage when the national security is threatened. [14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. BeltranÕs lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not
be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the
rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public
forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Monta–o, former head of the Philippine Constabulary, was arrested while
with his wife and golfmates at the Orchard Golf and Country Club in Dasmari–as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casi–o and Gabriela Representative Liza Maza. Bayan
MunaRepresentative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the ÒBatasan 5Ó decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has
ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were
filed with this Court against the above-named respondents. Three (3) of these petitions impleaded
President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDGÕs act of raiding the Daily Tribune offices as a clear case of ÒcensorshipÓ or Òprior
restraint.Ó They also claimed that the term ÒemergencyÓ refers only to tsunami, typhoon, hurricane
and similar occurrences, hence, there is Òabsolutely no emergencyÓ that warrants the issuance of PP
1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one
(21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casi–o, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5
constitute Òusurpation of legislative powersÓ; Òviolation of freedom of expressionÓ and Òa declaration
of martial law.Ó They alleged that President Arroyo Ògravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the possibility of lawless violence and a
showing that there is necessity to do so.Ó
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5
are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of
Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an Òarbitrary and
unlawful exercise by the President of her Martial Law powers.Ó And assuming that PP 1017 is not really
a declaration of Martial Law, petitioners argued that Òit amounts to an exercise by the President of
emergency powers without congressional approval.Ó In addition, petitioners asserted that PP 1017
Ògoes beyond the nature and function of a proclamation as defined under the Revised Administrative
Code.Ó
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are
Òunconstitutional for being violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution.Ó In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
 In respondentsÕ Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the
peopleÕs right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary simple foundation
--
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority competent to
hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.[22]
But the power of judicial review does not repose upon the courts a Òself-starting
capacity.Ó[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a question
of constitutionality; third, the constitutional question must be raised at the earliest opportunity;
and fourth, the decision of the constitutional question must be necessary to the determination of the
case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is Òdefinite and concrete, touching the legal relations of parties having adverse
legal interest;Ó a real and substantial controversy admitting of specific relief. [25] The Solicitor General
refutes the existence of such actual case or controversy, contending that the present petitions were
rendered Òmoot and academicÓ by President ArroyoÕs issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,[26] so that a declaration thereon would be of no practical use or value. [27] Generally,
courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President ArroyoÕs issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that Òan unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution;[31] second, the exceptional character of the situation and the paramount
public interest is involved;[32] third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;[33] and fourth, the case is capable of repetition yet
evading review.[34]
All the foregoing exceptions are present here and justify this CourtÕs assumption of jurisdiction over the
instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the publicÕs interest, involving as
they do the peopleÕs basic rights to freedom of expression, of assembly and of the press. Moreover,
the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or
rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional guarantees.[35] And
lastly, respondentsÕ contested actions are capable of repetition. Certainly, the petitions are subject to
judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
PanganibanÕs Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into
account the Chief JusticeÕs very statement that an otherwise ÒmootÓ case may still be decided
Òprovided the party raising it in a proper case has been and/or continues to be prejudiced or damaged
as a direct result of its issuance.Ó The present case falls right within this exception to the mootness
rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as Òa right of appearance in a court of justice on a given question.Ó [37] In
private suits, standing is governed by the Òreal-parties-in interestÓ rule as contained in Section 2, Rule 3
of the 1997 Rules of Civil Procedure, as amended. It provides that Òevery action must be prosecuted or
defended in the name of the real party in interest.Ó Accordingly, the Òreal-party-in interestÓ is Òthe
party who stands to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.Ó[38] Succinctly put, the plaintiffÕs standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
Òpublic rightÓ in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing as
a Òstranger,Ó or in the category of a Òcitizen,Ó or Ôtaxpayer.Ó In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a ÒcitizenÓ or Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ and ÒtaxpayerÓ standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff
in a taxpayerÕs suit is in a different category from the plaintiff in a citizenÕs suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v.
Collins:[40] ÒIn matter of mere public right, howeverÉthe people are the real partiesÉIt is at least the
right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied.Ó With respect to taxpayerÕs suits, Terr v.
Jordan[41] held that Òthe right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied.Ó
However, to prevent just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent Òdirect
injuryÓ test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled that for
a private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.
This Court adopted the Òdirect injuryÓ test in our jurisdiction. In People v. Vera,[44] it held that the
person who impugns the validity of a statute must have Òa personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result.Ó The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate,[45] Manila Race Horse TrainersÕ
Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the
Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may be waived by the
Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,[49] where the Òtranscendental importanceÓ of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,[50] this Court
resolved to pass upon the issues raised due to the Òfar-reaching implicationsÓ of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the
suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of Òtranscendental importance.Ó Pertinent
are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that Ògiven the
transcendental importance of the issues involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the parties seeking judicial reviewÓ of the
Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that ÒBalikatan 02-01Ó involves the exercise of CongressÕ
taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the CourtÕs attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peopleÕs
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court
reiterated the Òdirect injuryÓ test with respect to concerned citizensÕ cases involving constitutional
issues. It held that Òthere must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP),
is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or
supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the PresidentÕs declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The
same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co.
Inc. They alleged Òdirect injuryÓ resulting from Òillegal arrestÓ and Òunlawful searchÓ committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of
Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Ta–ada v. Tuvera,[64] that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to
assert the rights of their members.[65] We take judicial notice of the announcement by the Office of
the President banning all rallies and canceling all permits for public assemblies following the issuance of
PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the
IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, [66] the Court held that the mere invocation by
the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared by other groups
and the whole citizenry. However, in view of the transcendental importance of the issue, this Court
declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there
are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a
lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will
not likewise aid her because there was no showing that the enforcement of these issuances prevented
her from pursuing her occupation. Her submission that she has pending electoral protest before the
Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger question
of proper exercise of judicial power. This is the underlying legal tenet of the Òliberality doctrineÓ on
legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial
question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court on this very critical
matter. The petitions thus call for the application of the Òtranscendental importanceÓ doctrine, a
relaxation of the standing requirements for the petitioners in the ÒPP 1017 cases.Ó
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency, [67] may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and functions. Unlike
the legislative and judicial branch, only one constitutes the executive branch and anything which impairs
his usefulness in the discharge of the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government. However, this does not mean that
the President is not accountable to anyone. Like any other official, he remains accountable to the
people[68] but he may be removed from office only in the mode provided by law and that is by
impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not ÒnecessaryÓ for President
Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the PresidentÕs exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker[70] and Montenegro v. Castaneda[71] to the volatile era of Lansang
v. Garcia, Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts
[72]
across the line defining Òpolitical questions,Ó particularly those questions Òin regard to which full
discretionary authority has been delegated to the legislative or executive branch of the
government.Ó[75] Barcelon and Montenegro were in unison in declaring that the authority to decide
whether an exigency has arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, Òunder which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial Department, which in this
respect, is, in turn, constitutionallysupreme.Ó[76] In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.[77] There, the Court was almost evenly divided on
the issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is
a need to re-examine the latter case, ratiocinating that Òin times of war or national emergency, the
President must be given absolute control for the very life of the nation and the government is in great
peril. The President, it intoned, is answerable only to his conscience, the People, and God.Ó[79]
The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most pertinent to these cases at bar --
echoed a principle similar to Lansang. While the Court considered the PresidentÕs Òcalling-outÓ
power as a discretionary power solely vested in his wisdom, it stressed that Òthis does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of discretion.Ó This ruling is mainly a result of
the CourtÕs reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the
courts to determine in an appropriate action the validity of the acts of the political departments. Under
the new definition of judicial power, the courts are authorized not only Òto settle actual controversies
involving rights which are legally demandable and enforceable,Ó but also Òto determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government.Ó The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the government. [81] It speaks of judicial
prerogative not only in terms of power but also of duty.[82]
As to how the Court may inquire into the PresidentÕs exercise of power, Lansang adopted the test that
Òjudicial inquiry can go no further than to satisfy the Court not that the PresidentÕs decision
is correct,Ó but that Òthe President did not act arbitrarily.Ó Thus, the standard laid down is not
correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that Òit is
incumbent upon the petitioner to show that the PresidentÕs decision is totally bereft of factual
basisÓ and that if he fails, by way of proof, to support his assertion, then Òthis Court cannot undertake
an independent investigation beyond the pleadings.Ó
Petitioners failed to show that President ArroyoÕs exercise of the calling-out power, by issuing PP 1017,
is totally bereft of factual basis. A reading of the Solicitor GeneralÕs Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between
the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her
arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative Òpower to act
according to discretion for the public good, without the proscription of the law and sometimes even
against it.Ó[84] But Locke recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse
be avoided? Here, Locke readily admitted defeat, suggesting that Òthe people have no other remedy
in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.Ó[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in
certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the
StateÉ
It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend
their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will, and it clear that the
peopleÕs first intention is that the State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or Òsupreme magistracyÓ as he termed
it. For him, it would more likely be cheapened by Òindiscreet use.Ó He was unwilling to rely upon an
Òappeal to heaven.Ó Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government: ÒI am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of a
temporary dictatorship.Ó[88]
Nicollo MachiavelliÕs view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra Ðconstitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that pretext
but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, Watkins and Friedrich, he stated a priori the conditions of success of the Òconstitutional dictatorship,Ó
having a remedy for every emergency and fixed rules for applying it.[89] thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is

necessary or even indispensable to the preservation of the State and its constitutional orderÉ

Machiavelli Ð in contrast to Locke, Rosseau and Mill Ð sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in 2) Éthe decision to institute a constitutional dictatorship should never be in the hands of the man or
time of national danger. He attempted forthrightly to meet the problem of combining a capacious men who will constitute the dictatorÉ
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.[90]
3) No government should initiate a constitutional dictatorship without making specific provisions for its
terminationÉ
Contemporary political theorists, addressing themselves to the problem of response to emergency by
constitutional democracies, have employed the doctrine of constitutional dictatorship. [91] Frederick M.
Watkins saw Òno reason why absolutism should not be used as a means for the defense of liberal 4) Éall uses of emergency powers and all readjustments in the organization of the government should
institutions,Ó provided it Òserves to protect established institutions from the danger of permanent be effected in pursuit of constitutional or legal requirementsÉ
injury in a period of temporary emergency and is followed by a prompt return to the previous forms
of political life.Ó[92] He recognized the two (2) key elements of the problem of emergency governance,
as well as all constitutional governance: increasing administrative powers of the executive, while at the
5) É no dictatorial institution should be adopted, no right invaded, no regular procedure altered any
same time Òimposing limitation upon that power.Ó[93] Watkins placed his real faith in a scheme of
more than is absolutely necessary for the conquest of the particular crisis . . .
constitutional dictatorship. These are the conditions of success of such a dictatorship: ÒThe period of
dictatorship must be relatively shortÉDictatorship should always be strictly legitimate in
characterÉFinal authority to determine the need for dictatorship in any given case must never rest
with the dictator himselfÉÓ[94] and the objective of such an emergency dictatorship should be Òstrict 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
political conservatism.Ó permanent in character or effectÉ

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] ÒIt is a problem of
concentrating power Ð in a government where power has consciously been divided Ð to cope withÉ
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end.Ó[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: ÒThe emergency executive must be appointed by constitutional means Ð i.e., he must
be legitimate; he should not enjoy power to determine the existence of an emergency; emergency
powers should be exercised under a strict time limitation; and last, the objective of emergency action
must be the defense of the constitutional order.Ó[97]
7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute one should
never be in the hands of the man or men who constitute the dictator. . .

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain,
France, Weimar, Germany and the United States, reverted to a description of a scheme of 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
Òconstitutional dictatorshipÓ as solution to the vexing problems presented by emergency. [98] Like institutedÉ
 In the final analysis, the various approaches to emergency of the above political theorists Ð- from
LockÕs Òtheory of prerogative,Ó to WatkinsÕ doctrine of Òconstitutional dictatorshipÓ and, eventually,
11) Éthe termination of the crisis must be followed by a complete return as possible to the political and
to McIlwainÕs Òprinciple of constitutionalismÓ --- ultimately aim to solve one real problem in
governmental conditions existing prior to the initiation of the constitutional dictatorshipÉ [99]
emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political responsibility and
under effective limitations and checks.

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than
did Watkins. He would secure to Congress final responsibility for declaring the existence or termination Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
of an emergency, and he places great faith in the effectiveness of congressional investigating 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government
committees.[100] in the concept of Justice JacksonÕs Òbalanced power structure.Ó [102] Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were supreme within its own sphere. But none has the monopoly of power in times of emergency. Each
one in saying that, Òthe suggestion that democracies surrender the control of government to an branch is given a role to serve as limitation or check upon the
authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional other. This system does not weaken the President, it just limits his power, using the language of
theory.Ó To appraise emergency power in terms of constitutional dictatorship serves merely to distort McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose
the problem and hinder realistic analysis. It matters not whether the term ÒdictatorÓ is used in its a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same
normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives time, it obliges him to operate within carefully prescribed procedural limitations.
administering emergency powers. However used, Òconstitutional dictatorshipÓ cannot be divorced
from the implication of suspension of the processes of constitutionalism. Thus, they favored instead
the Òconcept of constitutionalismÓ articulated by Charles H. McIlwain:
a. ÒFacial ChallengeÓ

A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the Petitioners contend that PP 1017 is void on its face because of its Òoverbreadth.Ó They claim that its
substantive powers of government, full emphasis is placed upon procedural limitations, and political enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in Constitution and sent a Òchilling effectÓ to the citizens.
discussing the meaning of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
upon separation of powers and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant difference. In associating
constitutionalism with ÒlimitedÓ as distinguished from ÒweakÓ government, McIlwain meant
government limited to the orderly procedure of law as opposed to the processes of force. The two First and foremost, the overbreadth doctrine is an analytical tool developed for testing Òon their
fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are facesÓ statutes in free speech cases, also known under the American Law as First Amendment cases.[103]
the legal limits to arbitrary power and a complete political responsibility of government to the
governed.[101]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno,[104] the US Supreme Court held that Òwe have not recognized an ÔoverbreadthÕ
doctrine outside the limited context of the First AmendmentÓ (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that Òreflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct.Ó Undoubtedly, lawless violence, insurrection and rebellion are considered
ÒharmfulÓ and Òconstitutionally unprotected conduct.Ó In Broadrick v. Oklahoma,[105] it was held:
It remains a Ômatter of no little difficultyÕ to determine when a law may properly be held void on its
face and when Ôsuch summary actionÕ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and
that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from Ôpure speechÕ toward conduct and that conduct Ðeven if
expressive Ð falls within the scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only Òspoken wordsÓ and again, that Òoverbreadth claims, if entertained at all, have
been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct.Ó[106] Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct,
not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as Òmanifestly strong medicine,Ó to be used
Òsparingly and only as a last resort,Ó and is Ògenerally disfavored;Ó[107] The reason for this is obvious.
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to
whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably
be applied unconstitutionally to others, i.e., in other situations not before the Court.[108] A writer and
scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute Òon its face,Ó
not merely Òas applied forÓ so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the Òchilling;Ó deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an overbroad lawÕs
Òvery existence may cause others not before the court to refrain from constitutionally protected speech
or expression.Ó An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP
1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on
the assumption or prediction that its very existence may cause others not before the Court to refrain
from constitutionally protected speech or expression. In Younger v. Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary.
The combination of the relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.
Related to the ÒoverbreadthÓ doctrine is the Òvoid for vagueness doctrineÓ which holds that Òa law
is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to
its application.Ó[110] It is subject to the same principles governing overbreadth doctrine. For one, it is
also an analytical tool for testing Òon their facesÓ statutes in free speech cases. And like overbreadth,
it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence cannot understand the
meaning and application of PP 1017.
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

b. Constitutional Basis of PP 1017

The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
Now on the constitutional foundation of PP 1017.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
The operative portion of PP 1017 may be divided into three important provisions, thus:
of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

First provision:

Òby virtue of the power vested upon me by Section 18, Artilce VII É do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well any act of insurrection or rebellionÓ
Second provision:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

Òand to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;Ó The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
Third provision:

Òas provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency.Ó During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
First Provision: Calling-out Power

The first provision pertains to the PresidentÕs calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
grants the President, as Commander-in-Chief, a ÒsequenceÓ of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out power is that
Òwhenever it becomes necessary,Ó the President may call the armed forces Òto prevent or suppress
lawless violence, invasion or rebellion.Ó Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her OfficeÕs vast intelligence network, she is in the best position to determine the
actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act
that goes beyond the PresidentÕs calling-out power is considered illegal or ultra vires. For this reason, a
President must be careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power,
the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the PresidentÕs authority to
declare a Òstate of rebellionÓ (in Sanlakas) and the authority to proclaim a state of national
emergency. While President ArroyoÕs authority to declare a Òstate of rebellionÓ emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of
the Revised Administrative Code of 1987, which provides:
SEC. 4. Ð Proclamations. Ð Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.
President ArroyoÕs declaration of a Òstate of rebellionÓ was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to
prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the StateÕs extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously,
such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.
The declaration of Martial Law is a Òwarn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law.Ó [113]
In his ÒStatement before the Senate Committee on JusticeÓ on March 13, 2006, Mr. Justice Vicente V.
Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him to
secure the people from harm and to restore order so that they can enjoy their individual freedoms. In
fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be
used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other
purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra
vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants;
(b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-
Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely
an exercise of President ArroyoÕs calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause
Second Provision: ÒTake CareÓ Power
states: Òto enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.Ó Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations
The second provision pertains to the power of the President to ensure that the laws be faithfully
promulgated by me personally or upon my direction.Ó
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. Is it within the domain of President Arroyo to promulgate ÒdecreesÓ?

As the Executive in whom the executive power is vested, [115] the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all
PP 1017 states in part: Òto enforce obedience to all the laws and decrees x x x promulgated by
laws are enforced by the officials and employees of his department. Before assuming office, he is
me personally or upon my direction.Ó
required to take an oath or affirmation to the effect that as President of the Philippines, he will, among
others, Òexecute its laws.Ó[116] In the exercise of such function, the President, if needed, may employ
the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,[117] including the Philippine National Police[118] under the Department of Interior and Local The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
Government.[119] (Administrative Code of 1987). She may issue any of the following:

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano,
Teodoro Casi–o, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon
Sec. 2. Executive Orders. Ñ Acts of the President providing for rules of a general or permanent character
President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
Constitution, which vests the power to enact laws in Congress. They assail the clause Òto enforce
orders.
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction.Ó Sec. 3. Administrative Orders. Ñ Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative
\
orders.
PetitionersÕ contention is understandable. A reading of PP 1017 operative clause shows that it was
Sec. 4. Proclamations. Ñ Acts of the President fixing a date or declaring a status or condition of public
lifted[120] from Former President MarcosÕ Proclamation No. 1081, which partly reads:
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers
vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as
their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any
act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.
Sec. 5. Memorandum Orders. Ñ Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Ñ Acts of the President on matters relating to internal administration,
which the President desires to bring to the attention of all or some of the departments, agencies,
bureaus or offices of the Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. Ñ Acts and commands of the President in his capacity as Commander-
in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

The import of this provision is that President Arroyo, during the state of national emergency under PP
1017, can call the military not only to enforce obedience Òto all the laws and to all decrees x x xÓ but
also to act pursuant to the provision of Section 17, Article XII which reads:
President ArroyoÕs ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees
are laws which are of the same category and binding force as statutes because they were issued by the
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
President in the exercise of his legislative power during the period of Martial Law under the 1973
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
Constitution.[121]
operation of any privately-owned public utility or business affected with public interest.

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate Òdecrees.Ó Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that Ò[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives.Ó To be
sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
ArroyoÕs exercise of legislative power by issuing decrees.

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
Can President Arroyo enforce obedience to all decrees and laws through the military? grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to Òlaws,Ó she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017,
to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
This provision was first introduced in the 1973 Constitution, as a product of the Òmartial lawÓ thinking
of the 1971 Constitutional Convention.[122] In effect at the time of its approval was President MarcosÕ
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to
take over Òthe management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the present national
emergency.Ó

The pertinent provision of PP 1017 states:

Petitioners, particularly the members of the House of Representatives, claim that President
ArroyoÕs inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatureÕs
emergency powers.
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do
hereby declare a state of national emergency.
This is an area that needs delineation.
 A distinction must be drawn between the PresidentÕs authority to declare Òa state of national
emergencyÓ and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23
(2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate
a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible
or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

Section 23, Article VI of the Constitution reads:

(2) The delegation must be for a limited period only.

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for (3) The delegation must be subject to such restrictions as the Congress may prescribe.
a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.[124]
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the emergency
It may be pointed out that the second paragraph of the above provision refers not only to war but
powers generally reposed upon Congress. Thus, when Section 17 states that the Òthe State may,
also to Òother national emergency.Ó If the intention of the Framers of our Constitution was to
during the emergency and under reasonable terms prescribed by it, temporarily take over or direct
withhold from the President the authority to declare a Òstate of national emergencyÓ pursuant to
the operation of any privately owned public utility or business affected with public interest,Ó it refers
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence
to Congress, not the President. Now, whether or not the President may exercise such power is
of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress
dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable
should first authorize the President before he can declare a Òstate of national emergency.Ó The logical
terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:
conclusion then is that President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.

It is clear that if the President had authority to issue the order he did, it must be found in some provision
of the Constitution. And it is not claimed that express constitutional language grants this power to the
But the exercise of emergency powers, such as the taking over of privately owned public utility or
President. The contention is that presidential power should be implied from the aggregate of his
business affected with public interest, is a
powers under the Constitution. Particular reliance is placed on provisions in Article II which say that
different matter. This requires a delegation from Congress.
ÒThe executive Power shall be vested in a President . . . .;Ó that Òhe shall take Care that the Laws be
faithfully executed;Ó and that he Òshall be Commander-in-Chief of the Army and Navy of the United
States.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to
the same subject matter will be construed together and considered in the light of each
The order cannot properly be sustained as an exercise of the PresidentÕs military power as
other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
relate to national emergencies, they must be read together to determine the limitation of the exercise
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
of emergency powers.
war. Such cases need not concern us here. Even though Òtheater of warÓ be an expanding concept,
we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the
Armed Forces has the ultimate power as such to take possession of private property in order to keep
labor disputes from stopping production. This is a job for the nationÕs lawmakers, not for its military
authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the PresidentÕs power to
see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about
who shall make laws which the President is to execute. The first section of the first article says that
ÒAll legislative Powers herein granted shall be vested in a Congress of the United States. . .Ó[126]
Petitioner Cacho-Olivares, et al. contends that the term ÒemergencyÓ under Section 17, Article XII
refers to Òtsunami,Ó Òtyphoon,Ó ÒhurricaneÓ and Òsimilar occurrences.Ó This is a limited view of
Òemergency.Ó
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions
are the elements of intensity, variety, and perception. [127] Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,[129] and c) national
security.[130]
ÒEmergency,Ó as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.[131] This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the CommitteeÕs definition of Ònational emergencyÓ which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural
disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term Ònational emergency.Ó
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if Ònational emergencyÓ refers to military national
emergency or could this be economic emergency?Ó
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned public utility
or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
Òx x x
 After all the criticisms that have been made against the efficiency of the system of the separation in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
of powers, the fact remains that the Constitution has set up this form of government, with all its defects unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of
and shortcomings, in preference to the commingling of powers in one man or group of men. The expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of Of the seven (7) petitions, three (3) indicate Òdirect injury.Ó
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department Ð unless we regard as legislating the carrying out of a
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested
legislative policy according to prescribed standards; no, not even when that Republic was fighting a total
without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The
war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under
arresting officers cited PP 1017 as basis of the arrest.
our concept of constitutional government, in times of extreme perils more than in normal circumstances
Ôthe various branches, executive, legislative, and judicial,Õ given the ability to act, are called upon Ôto
perform the duties and discharge the responsibilities committed to them respectively.Ó
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February
25, 2006, the CIDG operatives Òraided and ransacked without warrantÓ their office. Three policemen
were assigned to guard their office as a possible Òsource of destabilization.Ó Again, the basis was PP
1017.
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017,
this Court rules that such Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or business affected with public And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
interest without authority from Congress. Òturned away and dispersedÓ when they went to EDSA and later, to Ayala Avenue, to celebrate the
20thAnniversary of People Power I.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public interest
that should be taken over. In short, the President has no absolute authority to exercise all the powers
of the State under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.
c. ÒAS APPLIED CHALLENGEÓ
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that
A perusal of the Òdirect injuriesÓ allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused
and misabused[135] and may afford an opportunity for abuse in the manner of application.[136] The
validity of a statute or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case.[137] PP 1017 is merely an
invocation of the PresidentÕs calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or violate the citizensÕ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance
is to be measured is the essential basis for the exercise of power, and not a mere incidental result
arising from its exertion.[138] This is logical. Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers implementing them have acted arbitrarily. If this
were so, judging from the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long
time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
Òacts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines.Ó They are internal rules issued by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create no relation except
between the official who issues them and the official who receives them. [139] They are based on and are
the product of, a relationship in which power is their source, and obedience, their object. [140] For these
reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the Ònecessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence.Ó
Unlike the term Òlawless violenceÓ which is unarguably extant in our statutes and the Constitution, and
which is invariably associated with Òinvasion, insurrection or rebellion,Ó the phrase Òacts of terrorismÓ
is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.
In fact, this Òdefinitional predicamentÓ or the Òabsence of an agreed definition of terrorismÓ confronts
not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the Òfight against terrorismÓ has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states Òsponsoring terrorismÓ and of terrorist
organizations are set up and constantly being updated according to criteria that are not always known
to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions Ð or threats of the use of force as the most
recent by the United States against Iraq Ð consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by states,
by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying ÒOne countryÕs terrorist is another countryÕs freedom
fighter.Ó The apparent contradiction or lack of consistency in the use of the term ÒterrorismÓ may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention
only a few, were originally labeled as terrorists by those who controlled the territory at the time, but
later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts Ð the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate ÒterrorismÓ with any violent act by non-
state groups against civilians, state functionaries or infrastructure or military installations, and those
who believe in the concept of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation Organization
(PLO) Ð which is a terrorist group for Israel and a liberation movement for Arabs and Muslims Ð the
Kashmiri resistance groups Ð who are terrorists in the perception of India, liberation fighters in that of
Pakistan Ð the earlier Contras in Nicaragua Ð freedom fighters for the United States, terrorists for the
Socialist camp Ð or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of
conflicting categorizations that cannot be reconciled in any way Ð because of opposing political interests
that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position
of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will ÒfluctuateÓ accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of a Òliberation struggle,Ó
not of ÒterrorismÓ when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A Òpolicy of double standardsÓ on this vital issue of international affairs
has been the unavoidable consequence.
This Òdefinitional predicamentÓ of an organization consisting of sovereign states Ð and not of peoples,
in spite of the emphasis in the Preamble to the United Nations Charter! Ð has become even more
serious in the present global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium powers are increasingly
being marginalized; and the problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]
The absence of a law defining Òacts of terrorismÓ may result in abuse and oppression on the part of the
police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word ÒterrorismÓ appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January
16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled ÒCodifying
The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations.Ó The word ÒterrorismÓ is mentioned in the following provision: ÒThat one who
conspires with any other person for the purpose of overthrowing the Government of the Philippines x x
x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.Ó
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines)
enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define
Òacts of terrorism.Ó Since there is no law defining Òacts of terrorism,Ó it is President Arroyo alone,
under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on
this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they
violate the due process clause of the Constitution. Thus, this Court declares that the Òacts of
terrorismÓ portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their
authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that Òthe right of the people to be secured in their persons, houses, papers
and effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable,and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.Ó[142] The plain import of the language of the Constitution is that searches, seizures
and arrests are normallyunreasonable unless authorized by a validly issued search warrant or warrant of
arrest. Thus, the fundamental protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.[143]
 But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he
was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like
a criminal suspect; fourth, he was treated brusquely by policemen who Òheld his head and tried to push
himÓ inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang
880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:
Section 4 of Article III guarantees:
No. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances.
ÒAssemblyÓ means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In
other words, like other rights embraced in the freedom of expression, the right to assemble is not
subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities except, of course, if the assembly is intended
to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be
validly required.

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right
attempting to commit an offense. to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor
General, during the oral argument, failed to justify the arresting officersÕ conduct. In De Jonge v.
(b) When an offense has just been committed and he has probable cause to believe based on personal
Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:
knowledge of facts or circumstances that the person to be arrested has committed it; and
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
x x x. cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to
Neither of the two (2) exceptions mentioned above justifies petitioner its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds
DavidÕs warrantless arrest. During the inquest for the charges of inciting to sedition and violation of of the freedom of speech which the Constitution protects. If the persons assembling have committed
BP 880, all that the arresting officers could invoke was their crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and
observation that some rallyists were wearing t-shirts with the invective ÒOust Gloria order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different
NowÓ and their erroneous assumption that petitioner David was the leader of the matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation
rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if
he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.[147]
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on
the basis of Malaca–angÕs directive canceling all permits previously issued by local government
units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that Òfreedom of assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right to prevent.Ó[149] Tolerance is
the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizensÕ right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due notice
and hearing on the determination of the presence of clear and present danger. Here, petitioners were
not even notified and heard on the revocation of their permits. [150] The first time they learned of it was
at the time of the dispersal. Such absence of notice is a fatal defect. When a personÕs right is
restricted by government action, it behooves a democratic government to see to it that the restriction is
fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom
of the press. PetitionersÕ narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily TribuneÕs offices were searched without warrant; second, the police
operatives seized several materials for publication; third, the search was conducted at about 1:00 oÕ
clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any
official of the Daily Tribune except the security guard of the building; and fifth, policemen stationed
themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was Òmeant to show a Ôstrong presence,Õ to tell media
outlets not to connive or do anything that would help the rebels in bringing down this
government.Ó Director General Lomibao further stated that Òif they do not follow the standards
Ðand the standards are if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 Ð we will recommend
a Ôtakeover.ÕÓ National Telecommunications Commissioner Ronald Solis urged television and radio
networks to ÒcooperateÓ with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the
conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause
in connection with one specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates
that the search of a house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person or in the place
ordered to be searched, in which case a direction may be inserted that it be served at any time of the
day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitionersÕ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We ForumÓ newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to
express themselves in print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the ÒMetropolitan MailÓ and
ÒWe ForumÓ newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded
their enforcement duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary of the repressive government who
tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to disobey.[153] Undoubtedly, the The
Daily Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. The motto should always be obsta
principiis.[154]
 Incidentally, during the oral arguments, the Solicitor General admitted that the search of Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
the TribuneÕs offices and the seizure of its materials for publication and other papers are illegal; and based on Proclamation 1017.
that the same are inadmissible Òfor any purpose,Ó thus:

SOLGEN BENIPAYO:
JUSTICE CALLEJO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
You made quite a mouthful of admission when you said that the policemen, when inspected the that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune? SR. ASSO. JUSTICE PUNO:
SOLICITOR GENERAL BENIPAYO:

Is it based on any law?

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.[155]
SOLGEN BENIPAYO:

xxx xxx xxx

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

SR. ASSO. JUSTICE PUNO:

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 oÕclock in the morning and without any search So, it has no basis, no legal basis whatsoever?
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:

SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I donÕt know if it is premature to say
this, we do not condone this. If the people who have been injured by this would want to sue them,
they can sue and there are remedies for this.[156]
Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor
General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I donÕt know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
Òshould result in no constitutional or statutory breaches if applied according to their letter.Ó
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizensÕ rights under the Constitution, this Court has to declare such acts unconstitutional
and illegal.
In this connection, Chief Justice Artemio V. PanganibanÕs concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 Ð a supervening event Ð would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed Òif the May 1 ralliesÓ become Òunruly and
violent.Ó Consequently, the transcendental issues raised by the parties should not be Òevaded;Ó they
must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President
for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017Õs
extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct
the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of prior restraint on
the press, are ultra vires andunconstitutional. The Court also rules that under Section 17, Article XII of
the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public
utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President Ð acting as
Commander-in-Chief Ð addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard Ð that the military and the police should take only
the Ònecessary and appropriate actions and measures to suppress and prevent acts of lawless
violence.Ó But the words Òacts of terrorismÓ found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
ÒterrorismÓ has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPÕs authority in carrying out this portion of
G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the
warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.
were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as well as the warrantless
search of the Tribuneoffices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.
It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic SO ORDERED.
state. During emergency, governmental action may vary in breadth and intensity from normal times,
yet they should not be arbitrary as to unduly restrain our peopleÕs liberty.
ANGELINA SANDOVAL-GUTIERREZ

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing Associate Justice
political philosophies is that, it is possible to grant government the authority to cope with crises without
.
surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar
as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to
lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency
under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or business affected with public
interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is Ònecessary and appropriate actions and measures to suppress
and prevent acts of lawless violence.Ó Considering that Òacts of terrorismÓ have not yet been defined
and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of
the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners
EN BANC
[ GR No. 103702, Dec 06, 1994 ]
MUNICIPALITY OF SAN NARCISO v. ANTONIO V. MENDEZ +
DECISION
G.R. No. 103702
VITUG, J.:
On 20 August 1959, President Carlos P. Garcia, issued, pursuant to the then Sections 68 and 2630 of the
Revised Administrative Code, as amended, Executive Order No. 353 creating the municipal district of
San Andres, Quezon, by segregating from the municipality of San Narciso of the same province,
the barrios of San Andres, Mangero, Alibijaban, Pansoy, Camflora and Tala along with their
respectivesitios.
Executive Order No. 353 was issued upon the request, addressed to the President and coursed through
the Provincial Board of Quezon, of the municipal council of San Narciso, Quezon, in its Resolution No. 8
of 24 May 1959.[1]
By virtue of Executive Order No. 174, dated 05 October 1965, issued by President Diosdado Macapagal,
the municipal district of San Andres was later officially recognized to have gained the status of a fifth
class municipality beginning 01 July 1963 by operation of Section 2 of Republic Act No. 1515. [2] The
executive order added that "(t)he conversion of this municipal district into (a) municipality as proposed
in House Bill No. 4864 was approved by the House of Representatives."
On 05 June 1989, the Municipality of San Narciso filed a petition for quo warranto with the Regional
Trial Court, Branch 62, in Gumaca, Quezon, against the officials of the Municipality of San Andres.
Docketed Special Civil Action No. 2014-G, the petition sought the declaration of nullity of Executive
Order No. 353 and prayed that the respondent local officials of the Municipality of San Andres be
permanently ordered to refrain from performing the duties and functions of their respective
offices.[3] Invoking the ruling of this Court inPelaez v. Auditor General,[4] the petitioning municipality
contended that Executive Order No. 353, a presidential act, was a clear usurpation of the inherent
powers of the legislature and in violation of the constitutional principle of separation of powers. Hence,
petitioner municipality argued, the officials of the Municipality or Municipal District of San Andres had
no right to exercise the duties and functions of their respective offices that rightfully belonged to the
corresponding officials of the Municipality of San Narciso.
In their answer, respondents asked for the dismissal of the petition, averring, by way of affirmative and
special defenses, that since it was at the instance of petitioner municipality that the Municipality of San
Andres was given life with the issuance of Executive Order No. 353, it (petitioner municipality) should be
deemed estopped from questioning the creation of the new municipality;[5] that because the
Municipality of San Andres had been in existence since 1959, its corporate personality could no longer
be assailed; and that, considering the petition to be one for quo warranto, petitioner municipality was
not the proper party to bring the action, that prerogative being reserved to the State acting through the
Solicitor General.[6]
On 18 July 1991, after the parties had submitted their respective pre-trial briefs, the trial court resolved
to defer action on the motion to dismiss and to deny a judgment on the pleadings.
On 27 November 1991, the Municipality of San Andres filed anew a motion to dismiss alleging that the
case had become moot and academic with the enactment of Republic Act No. 7160, otherwise known as
the Local Government Code of 1991, which took effect on 01 January 1991. The movant municipality
cited Section 442(d) of the law, reading thusly:
Sec. 442. Requisites for Creation. - x x x.
"(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized pursuant to presidential issuances or executive
orders and which have their respective set of elective municipal officials holding office at the time of the
effectivity of this Code shall henceforth be considered as regular municipalities."
The motion was opposed by petitioner municipality, contending that the above provision of law was
inapplicable to the Municipality of San Andres since the enactment referred to legally existing
municipalities and not to those whose mode of creation had been void ab initio.[7]
In its Order of 02 December 1991, the lower court[8] finally dismissed the petition[9] for lack of cause of
action on what it felt was a matter that belonged to the State, adding that "whatever defects (were)
present in the creation of municipal districts by the President pursuant to presidential issuances and
executive orders, (were) cured by the enactment of R.A. 7160, otherwise known as Local Government
Code of 1991." In an order, dated 17 January 1992, the same court denied petitioner municipality's
motion for reconsideration.
Hence, this petition "for review on certiorari." Petitioners[10] argue that in issuing the orders of 02
December 1991 and 17 January 1992, the lower court has "acted with grave abuse of discretion
amounting to lack of or in excess of jurisdiction." Petitioners assert that the existence of a municipality
created by a null and void presidential order may be attacked either directly or even collaterally by
anyone whose interests or rights are affected, and that an unconstitutional act is not a law, creates no
office and is inoperative such as though it has never been passed.[11]
Petitioners consider the instant petition to be one for "review on certiorari" under Rules 42 and 45 of
the Rules of Court; at the same time, however, they question the orders of the lower court for having
been issued with "grave abuse of discretion amounting to lack of or in excess of jurisdiction, and that
there is no other plain, speedy and adequate remedy in the ordinary course of law available to
petitioners to correct said Orders, to protect their rights and to secure a final and definitive
interpretation of the legal issues involved."[12] Evidently, then, the petitioners intend to submit their
case in this instance under Rule 65. We shall disregard the procedural incongruence.
The special civil action of quo warranto is a "prerogative writ by which the Government can call upon Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after
any person to show by what warrant he holds a public office or exercises a public franchise." [13] When having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas
the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as
proceeding for quo warranto or any other direct proceeding.[14] It must be brought "in the name of the municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain
Republic of the Philippines"[15] and commenced by the Solicitor General or the fiscal "when directed by municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated
the President of the Philippines x x x."[16] Such officers may, under certain circumstances, bring such an 13 June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this administrative
action "at the request and upon the relation of another person" with the permission of the court. [17] The order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San
Rules of Court also allows an individual to commence an action for quo warranto in his own name but Francisco-San Andres for the province of Quezon.
this initiative can be done when he claims to be "entitled to a public office or position usurped or
At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the
unlawfully held or exercised by another."[18] While the quo warranto proceedings filed below by
Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives,
petitioner municipality has so named only the officials of the Municipality of San Andres as respondents,
appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of
it is virtually, however, a denunciation of the authority of the Municipality or Municipal District of San
the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant
Andres to exist and to act in that capacity.
is Section 442(d) of the Local Government Code to the effect that municipal districts "organized
At any rate, in the interest of resolving any further doubt on the legal status of the Municipality of San pursuant to presidential issuances or executive orders and which have their respective sets of elective
Andres, the Court shall delve into the merits of the petition. municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be
considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of
While petitioners would grant that the enactment of Republic Act No. 7160 may have converted the
the Local Government Code is proferred. It is doubtful whether such a pretext, even if made, would
Municipality of San Andres into a defacto municipality, they, however, contend that since the petition
succeed. The power to create political subdivisions is a function of the legislature. Congress did just that
for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a
when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are
vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442
retrospective,[21] and aimed at giving "validity to acts done that would have been invalid under existing
of Republic Act 7160 to the petition would perforce be violative of due process and the equal protection
laws, as if existing laws have been complied with," are validly accepted in this jurisdiction, subject to the
clause of the Constitution.
usual qualification against impairment of vested rights.[22]
Petitioners' theory might perhaps be a point to consider had the case been seasonably brought.
All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now
Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but
be conceded.
it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally
decided to challenge the legality of the executive order. In the meantime, the Municipal District, and WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Costs against petitioners.
later the Municipality, of San Andres, began and continued to exercise the powers and authority of a
SO ORDERED.
duly created local government unit. In the same manner that the failure of a public officer to question
his ouster or the right of another to hold a position within a one-year period can abrogate an action
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno,
belatedly filed,[19] so also, if not indeed with greatest imperativeness, must a quo warranto proceeding
Kapunan, and Mendoza, JJ., concur.
assailing the lawful authority of a political subdivision be timely raised. [20] Public interest demands it.
Feliciano, J., on leave.
Granting that Executive Order No. 353 was a complete nullity for being the result of an unconstitutional
delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a
choice other than to consider the Municipality of San Andres to have at least attained a status uniquely
of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation.
Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of Executive Order No. [1]
Present at the meeting when the municipal council of San Narciso, Quezon adopted Resolution No. 8
353, the Municipality of San Andres had been in existence for more than six years when, on 24 were Municipal Mayor Godofredo M. Tan, Vice-Mayor Jesus R. Cortez, and Councilors Maximino F.
December 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for Rivadulla, Eleuterio Aurellana, Juanito Conjares, Dominador Nadres and Felix Aurellana. Councilor
a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. Eduardo L. Ausa was absent. The reasons for the adoption of Resolution No. 8 are stated in the following
On the contrary, certain governmental acts all pointed to the State's recognition of the continued clauses:
existence of the Municipality of San Andres. Thus, after more than five years as a municipal district,
"WHEREAS, this body has been informed that the chance for the approval of the bill creating the barrios Respondents. CARPIO MORALES,
of San Andres, Mangero, Alibijaban, Pansoy, Camflora and Tala, into a regular Municipality is very slim;
AZCUNA,
WHEREAS, the reason behind such disapproval is the patent inability of the proposed Municipality to
TINGA,
pay its would-to-be (sic) employees at the rate required in the Minimum Wage Law;
CHICO-NAZARIO,
WHEREAS, this body in particular, and the great majority of the people of San Andres in general,
notwithstanding the provision of the Minimum Wage Law, agitate for the separation or segregation of GARCIA,
the abovementioned barrios so as to have a corporate personality in the eyes of the Provincial Board, in
the eyes of Congress and in the eyes of the President; VELASCO, JR. and

WHEREAS, once said barrios acquire a corporate personality in the eyes of the Provincial Board, of NACHURA, JJ.
Congress and of the President, the development of said barrios and practically the whole southern tip of
the Bondoc Peninsula will be hastened. (Rollo, p. 162.)
[2]
Promulgated:
This act has provided for a more autonomous government for municipal districts, amending for the
purpose Art. VI, Chapter 64 of the Administrative Code. Sec. 2 thereof states that "any first class
municipal district the annual receipts of which shall average more than four thousand pesos for four
consecutive fiscal years shall ipso facto be classified as a fifth class municipality and shall thereafter be July 17, 2007
governed by the provisions of Articles one to five, Chapter 64 of the same Code." x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

EN BANC

DECISION
ROMEO P. GEROCHI, KATULONG NG BAYAN (KB) G.R. No. 159796
and ENVIRONMENTALIST CONSUMERS NETWORK,
INC. (ECN), NACHURA, J.:
Present:
Petitioners,

-versus-
DEPARTMENT OF ENERGY (DOE), ENERGY
REGULATORY COMMISSION (ERC), NATIONAL
POWER CORPORATION (NPC), POWER SECTOR
ASSETS AND LIABILITIES MANAGEMENT GROUP
(PSALM Corp.), STRATEGIC POWER UTILITIES
GROUP (SPUG), and PANAYELECTRIC COMPANY
INC. (PECO),
PUNO, C.J., Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and Environmentalist Consumers Network, Inc.
QUISUMBING, (ECN) (petitioners), come before this Court in this original action praying that Section 34 of Republic Act
(RA) 9136, otherwise known as the Electric Power Industry Reform Act of 2001 (EPIRA), imposing the
YNARES-SANTIAGO, Universal Charge,[1] and Rule 18 of the Rules and Regulations (IRR)[2] which seeks to implement the said
imposition, be declared unconstitutional. Petitioners also pray that the Universal Charge imposed upon
SANDOVAL-GUTIERREZ,
the consumers be refunded and that a preliminary injunction and/or temporary restraining order (TRO)
CARPIO, be issued directing the respondents to refrain from implementing, charging, and collecting the said
charge.[3] The assailed provision of law reads:
AUSTRIA-MARTINEZ,
CORONA,
SECTION 34. Universal Charge. Within one (1) year from the effectivity of this Act, a universal charge to
be determined, fixed and approved by the ERC, shall be imposed on all electricity end-users for the
On May 7, 2002, NPC filed another petition with ERC, docketed as ERC Case No. 2002-194, praying that
following purposes:
the proposed share from the Universal Charge for the Environmental charge of P0.0025 per kilowatt-
hour (/kWh), or a total of P119,488,847.59, be approved for withdrawal from the Special
Trust Fund (STF) managed by respondent Power Sector Assets and
(a) Payment for the stranded debts[4] in excess of the amount assumed by the National Government and
stranded contract costs of NPC[5] and as well as qualified stranded contract costs of distribution utilities
resulting from the restructuring of the industry;

Liabilities Management Group (PSALM)[10] for the rehabilitation and management of watershed areas.[11]

(b) Missionary electrification;[6]

On December 20, 2002, the ERC issued an Order[12] in ERC Case No. 2002-165 provisionally approving
the computed amount of P0.0168/kWh as the share of the NPC-SPUG from the Universal Charge for
(c) The equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis--
Missionary Electrification and authorizing the National Transmission Corporation (TRANSCO) and
vis imported energy fuels;
Distribution Utilities to collect the same from its end-users on a monthly basis.

(d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (P0.0025/kWh),
On June 26, 2003, the ERC rendered its Decision[13] (for ERC Case No. 2002-165) modifying its Order of
which shall accrue to an environmental fund to be used solely for watershed rehabilitation and
December 20, 2002, thus:
management. Said fund shall be managed by NPC under existing arrangements; and

(e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3) years.
The universal charge shall be a non-bypassable charge which shall be passed on and collected from all
end-users on a monthly basis by the distribution utilities. Collections by the distribution utilities and the
TRANSCO in any given month shall be remitted to the PSALM Corp. on or before the fifteenth (15th) of
the succeeding month, net of any amount due to the distribution utility. Any end-user or self-generating
entity not connected to a distribution utility shall remit its corresponding universal charge directly to the
TRANSCO. The PSALM Corp., as administrator of the fund, shall create a Special Trust Fund which shall
be disbursed only for the purposes specified herein in an open and transparent manner. All amount
collected for the universal charge shall be distributed to the respective beneficiaries within a reasonable
period to be provided by the ERC.
WHEREFORE, the foregoing premises considered, the provisional authority granted to petitioner
National Power Corporation-Strategic Power Utilities Group (NPC-SPUG) in the Order dated December
20, 2002 is hereby modified to the effect that an additional amount of P0.0205 per kilowatt-hour should
be added to the P0.0168 per kilowatt-hour provisionally authorized by the Commission in the said
Order. Accordingly, a total amount of P0.0373 per kilowatt-hour is hereby APPROVED for withdrawal
from the Special Trust Fund managed by PSALM as its share from the Universal Charge for Missionary
Electrification (UC-ME) effective on the following billing cycles:
(a) June 26-July 25, 2003 for National Transmission Corporation (TRANSCO); and
(b) July 2003 for Distribution Utilities (Dus).

The Facts
Relative thereto, TRANSCO and Dus are directed to collect the UC-ME in the amount of P0.0373 per
[7]
Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it took effect. kilowatt-hour and remit the same to PSALM on or before the 15 th day of the succeeding month.

On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities Group[8] (NPC-SPUG)
filed with respondent Energy Regulatory Commission (ERC) a petition for the availment from the
Universal Charge of its share for Missionary Electrification, docketed as ERC Case No. 2002-165.[9]
In the meantime, NPC-SPUG is directed to submit, not later than April 30, 2004, a detailed report to Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194, authorizing the NPC to draw up
include Audited Financial Statements and physical status (percentage of completion) of the projects to P70,000,000.00 from PSALM for its 2003 Watershed Rehabilitation Budget subject to the availability
using the prescribed format. of funds for the Environmental Fund component of the Universal Charge.[16]

Let copies of this Order be furnished petitioner NPC-SPUG and all distribution utilities (Dus). On the basis of the said ERC decisions, respondent Panay Electric Company, Inc. (PECO)
charged petitioner Romeo P. Gerochi and all other

SO ORDERED.

end-users with the Universal Charge as reflected in their respective electric bills starting from the month
of July 2003.[17]

On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration asking the ERC, among others, [14] to
set aside the above-mentioned Decision, which the ERC granted in its Order dated October 7, 2003,
disposing:
WHEREFORE, the foregoing premises considered, the Motion for Reconsideration filed by petitioner
National Power Corporation-Small Power Utilities Group (NPC-SPUG) is hereby GRANTED. Accordingly,
the Decision dated June 26, 2003 is hereby modified accordingly.
Relative thereto, NPC-SPUG is directed to submit a quarterly report on the following:
1. Projects for CY 2002 undertaken;
Hence, this original action.
Petitioners submit that the assailed provision of law and its IRR which sought to implement the same
are unconstitutional on the following grounds:
1) The universal charge provided for under Sec. 34 of the EPIRA and sought to be implemented under
Sec. 2, Rule 18 of the IRR of the said law is a tax which is to be collected from all electric end-users and
self-generating entities. The power to tax is strictly a legislative function and as such, the delegation of
said power to any executive or administrative agency like the ERC is unconstitutional, giving the same
unlimited authority. The assailed provision clearly provides that the Universal Charge is to be
determined, fixed and approved by the ERC, hence leaving to the latter complete discretionary
legislative authority.

2. Location
2) The ERC is also empowered to approve and determine where the funds collected should be used.
3. Actual amount utilized to complete the project;

4. Period of completion;
3) The imposition of the Universal Charge on all end-users is oppressive and confiscatory and
5. Start of Operation; and
amounts to taxation without representation as the consumers were not given a chance to be heard and
6. Explanation of the reallocation of UC-ME funds, if any. represented.[18]

SO ORDERED.[15]

Petitioners contend that the Universal Charge has the characteristics of a tax and is collected to fund the
operations of the NPC. They argue that the cases[19] invoked by the respondents clearly show the
regulatory purpose of the charges imposed therein, which is not so in the case at bench. In said cases,
the respective funds[20] were created in order to balance and stabilize the prices of oil and sugar, and to
The ultimate issues in the case at bar are:
act as buffer to counteract the changes and adjustments in prices, peso devaluation, and other variables
which cannot be adequately and timely monitored by the legislature. Thus, there was a need to
delegate powers to administrative bodies.[21] Petitioners posit that the Universal Charge is imposed not
for a similar purpose. 1) Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and

On the other hand, respondent PSALM through the Office of the Government Corporate Counsel (OGCC)
contends that unlike a tax which is imposed to provide income for public purposes, such as support of
2) Whether or not there is undue delegation of legislative power to tax on the part of the ERC. [26]
the government, administration of the law, or payment of public expenses, the assailed Universal
Charge is levied for a specific regulatory purpose, which is to ensure the viability of the country's electric
power industry. Thus, it is exacted by the State in the exercise of its inherent police power. On this
premise, PSALM submits that there is no undue delegation of legislative power to the ERC since the
latter merely exercises a limited authority or discretion as to the execution and implementation of the Before we discuss the issues, the Court shall first deal with an obvious procedural lapse.
provisions of the EPIRA.[22]

Petitioners filed before us an original action particularly denominated as a Complaint assailing the
Respondents Department of Energy (DOE), ERC, and NPC, through the Office of the Solicitor General constitutionality of Sec. 34 of the EPIRA imposing the Universal Charge and Rule 18 of the EPIRA's IRR.
(OSG), share the same view that the Universal Charge is not a tax because it is levied for a specific No doubt, petitioners have locus standi. They impugn the constitutionality of Sec. 34 of the EPIRA
regulatory purpose, which is to ensure the viability of the country's electric power industry, and is, because they sustained a direct injury as a result of the imposition of the Universal Charge as reflected
therefore, an exaction in the exercise of the State's police power. Respondents further contend that said in their electric bills.
Universal Charge does not possess the essential characteristics of a tax, that its imposition would
redound to the benefit of the electric power industry and not to the public, and that its rate is uniformly
levied on electricity end-users, unlike a tax which is imposed based on the individual taxpayer's ability to
However, petitioners violated the doctrine of hierarchy of courts when they filed this Complaint directly
pay. Moreover, respondents deny that there is undue delegation of legislative power to the ERC since
with us. Furthermore, the Complaint is bereft of any allegation of grave abuse of discretion on the part
the EPIRA sets forth sufficient determinable standards which would guide the ERC in the exercise of the
of the ERC or any of the public respondents, in order for the Court to consider it as a petition
powers granted to it. Lastly, respondents argue that the imposition of the Universal Charge is not
for certiorari or prohibition.
oppressive and confiscatory since it is an exercise of the police power of the State and it complies with
the requirements of due process.[23]

Article VIII, Section 5(1) and (2) of the 1987 Constitution[27] categorically provides that:

On its part, respondent PECO argues that it is duty-bound to collect and remit the amount pertaining to
the Missionary Electrification and Environmental Fund components of the Universal Charge, pursuant to
Sec. 34 of the EPIRA and the Decisions in ERC Case Nos. 2002-194 and 2002-165. Otherwise, PECO could SECTION 5. The Supreme Court shall have the following powers:
be held liable under Sec. 46[24] of the EPIRA, which imposes fines and penalties for any violation of its
provisions or its IRR.[25]
1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court
may provide, final judgments and orders of lower courts in:
The Issues
(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
But this Court's jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto,
and habeas corpus, while concurrent with that of the regional trial courts and the Court of Appeals, does
not give litigants unrestrained freedom of choice of forum from which to seek such relief. [28] It has long
been established that this Court will not entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts, or where exceptional and compelling circumstances justify
availment of a remedy within and call for the exercise of our primary jurisdiction. [29] This circumstance
alone warrants the outright dismissal of the present action.
This procedural infirmity notwithstanding, we opt to resolve the constitutional issue raised herein. We
are aware that if the constitutionality of Sec. 34 of the EPIRA is not resolved now, the issue will certainly
resurface in the near future, resulting in a repeat of this litigation, and probably involving the same
parties. In the public interest and to avoid unnecessary delay, this Court renders its ruling now.
The instant complaint is bereft of merit.
The First Issue
To resolve the first issue, it is necessary to distinguish the States power of taxation from the police
power.
The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very
nature no limits, so that security against its abuse is to be found only in the responsibility of the
legislature which imposes the tax on the constituency that is to pay it. [30] It is based on the principle that
taxes are the lifeblood of the government, and their prompt and certain availability is an imperious
need.[31] Thus, the theory behind the exercise of the power to tax emanates from necessity; without
taxes, government cannot fulfill its mandate of promoting the general welfare and well-being of the
people.[32]
On the other hand, police power is the power of the state to promote public welfare by restraining and
regulating the use of liberty and property.[33] It is the most pervasive, the least limitable, and the most
demanding of the three fundamental powers of the State. The justification is found in the Latin
maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut
alienum non laedas (so use your property as not to injure the property of others). As an inherent
attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply
of instruments through which the State, asparens patriae, gives effect to a host of its regulatory
powers.[34] We have held that the power to "regulate" means the power to protect, foster, promote,
preserve, and control, with due regard for the interests, first and foremost, of the public, then of the
utility and of its patrons.[35]
The conservative and pivotal distinction between these two powers rests in the purpose for which the
charge is made. If generation of revenue is the primary purpose and regulation is merely incidental, the
imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised
does not make the imposition a tax.[36]
In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's police power,
particularly its regulatory dimension, is invoked. Such can be deduced from Sec. 34 which enumerates
the purposes for which the Universal Charge is imposed [37] and which can be amply discerned as
regulatory in character. The EPIRA resonates such regulatory purposes, thus:
SECTION 2. Declaration of Policy. It is hereby declared the policy of the State:
(a) To ensure and accelerate the total electrification of the country;
(b) To ensure the quality, reliability, security and affordability of the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity in a regime of free and fair competition
and full public accountability to achieve greater operational and economic efficiency and enhance the
competitiveness of Philippine products in the global market;
(d) To enhance the inflow of private capital and broaden the ownership base of the power generation,
transmission and distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public and private sector entities in the process
of restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates and services of electric utilities and other
providers of electric power;
(g) To assure socially and environmentally compatible energy sources and infrastructure;
(h) To promote the utilization of indigenous and new and renewable energy resources in power
generation in order to reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of the assets and liabilities of the National
Power Corporation (NPC);
(j) To establish a strong and purely independent regulatory body and system to ensure consumer
protection and enhance the competitive operation of the electricity market; and
(k) To encourage the efficient use of energy and other modalities of demand side management.
From the aforementioned purposes, it can be gleaned that the assailed Universal Charge is not a tax, but
an exaction in the exercise of the State's police power. Public welfare is surely promoted.
Moreover, it is a well-established doctrine that the taxing power may be used as an implement of police
power.[38] In Valmonte v. Energy Regulatory Board, et al. [39] and in Gaston v. Republic Planters
Bank,[40] this Court held that the Oil Price Stabilization Fund (OPSF) and the Sugar Stabilization Fund
(SSF) were exactions made in the exercise of the police power. The doctrine was reiterated in Osmea v.
Orbos[41] with respect to the OPSF. Thus, we disagree with petitioners that the instant case is different
from the aforementioned cases. With the Universal Charge, a Special Trust Fund (STF) is also created
under the administration of PSALM.[42] The STF has some notable characteristics similar to the OPSF and
the SSF, viz.:
1) In the implementation of stranded cost recovery, the ERC shall conduct a review to determine
whether there is under-recovery or over recovery and adjust (true-up) the level of the stranded cost
recovery charge. In case of an over-recovery, the ERC shall ensure that any excess amount shall be
remitted to the STF. A separate account shall be created for these amounts which shall be held in trust
for any future claims of distribution utilities for stranded cost recovery. At the end of the stranded cost
recovery period, any remaining amount in this account shall be used to reduce the electricity rates to
the end-users.[43]
2) With respect to the assailed Universal Charge, if the total amount collected for the same is greater
than the actual availments against it, the PSALM shall retain the balance within the STF to pay for
periods where a shortfall occurs.[44]
3) Upon expiration of the term of PSALM, the administration of the STF shall be transferred to the
DOF or any of the DOF attached agencies as designated by the DOF Secretary. [45]
The OSG is in point when it asseverates:
Evidently, the establishment and maintenance of the Special Trust Fund, under the last paragraph of
Section 34, R.A. No. 9136, is well within the pervasive and non-waivable power and responsibility of the
government to secure the physical and economic survival and well-being of the community, that
comprehensive sovereign authority we designate as the police power of the State.[46]
This feature of the Universal Charge further boosts the position that the same is an exaction imposed
primarily in pursuit of the State's police objectives. The STF reasonably serves and assures the
attainment and perpetuity of the purposes for which the Universal Charge is imposed, i.e., to ensure the
viability of the country's electric power industry.
The Second Issue
The principle of separation of powers ordains that each of the three branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere. A logical corollary to the doctrine of separation of powers is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas delegata non delegari potest (what has been
delegated cannot be delegated). This is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate through the instrumentality of
his own judgment and not through the intervening mind of another. [47]
In the face of the increasing complexity of modern life, delegation of legislative power to various
specialized administrative agencies is allowed as an exception to this principle. [48] Given the volume and
variety of interactions in today's society, it is doubtful if the legislature can promulgate laws that will
deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to
delegate to administrative bodies - the principal agencies tasked to execute laws in their specialized
fields - the authority to promulgate rules and regulations to implement a given statute and effectuate its
policies. All that is required for the valid exercise of this power of subordinate legislation is that the
regulation be germane to the objects and purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it. The
second test mandates adequate guidelines or limitations in the law to determine the boundaries of the
delegate's authority and prevent the delegation from running riot. [49]
The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec. 34 thereof, is
complete in all its essential terms and conditions, and that it contains sufficient standards.
Although Sec. 34 of the EPIRA merely provides that within one (1) year from the effectivity thereof, a
Universal Charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity
end-users, and therefore, does not state the specific amount to be paid as Universal Charge, the amount
nevertheless is made certain by the legislative parameters provided in the law itself. For one, Sec.
43(b)(ii) of the EPIRA provides:
SECTION 43. Functions of the ERC. The ERC shall promote competition, encourage market development,
ensure customer choice and penalize abuse of market power in the restructured electricity industry. In
appropriate cases, the ERC is authorized to issue cease and desist order after due notice and hearing.
Towards this end, it shall be responsible for the following key functions in the restructured industry:
xxxx
(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in accordance with
law, a National Grid Code and a Distribution Code which shall include, but not limited to the following:
xxxx
(ii) Financial capability standards for the generating companies, the TRANSCO, distribution utilities and
suppliers: Provided, That in the formulation of the financial capability standards, the nature and
function of the entity shall be considered: Provided, further, That such standards are set to ensure that
the electric power industry participants meet the minimum financial standards to protect the public
interest. Determine, fix, and approve, after due notice and public hearings the universal charge, to be
imposed on all electricity end-users pursuant to Section 34 hereof;
Moreover, contrary to the petitioners contention, the ERC does not enjoy a wide latitude of discretion in
the determination of the Universal Charge. Sec. 51(d) and (e) of the EPIRA[50] clearly provides:
SECTION 51. Powers. The PSALM Corp. shall, in the performance of its functions and for the attainment
of its objective, have the following powers:
xxxx
(d) To calculate the amount of the stranded debts and stranded contract costs of NPC which shall form
the basis for ERC in the determination of the universal charge;
(e) To liquidate the NPC stranded contract costs, utilizing the proceeds from sales and other property
contributed to it, including the proceeds from the universal charge.
Thus, the law is complete and passes the first test for valid delegation of legislative power.
As to the second test, this Court had, in the past, accepted as sufficient standards the following:
"interest of law and order;"[51] "adequate and efficient instruction;"[52] "public interest;"[53] "justice and
equity;"[54]"public convenience and welfare;"[55] "simplicity, economy and
efficiency;" "standardization and regulation of medical education;"[57] and "fair and equitable
[56]
employment practices."[58] Provisions of the EPIRA such as, among others, to ensure the total
electrification of the country and the quality, reliability, security and affordability of the supply of
electric power[59] and watershed rehabilitation and management[60] meet the requirements for valid
delegation, as they provide the limitations on the ERCs power to formulate the IRR. These are sufficient
standards.
It may be noted that this is not the first time that the ERC's conferred powers were challenged.
In Freedom from Debt Coalition v. Energy Regulatory Commission,[61] the Court had occasion to say:
In determining the extent of powers possessed by the ERC, the provisions of the EPIRA must not be read
in separate parts. Rather, the law must be read in its entirety, because a statute is passed as a whole,
and is animated by one general purpose and intent. Its meaning cannot to be extracted from any single
part thereof but from a general consideration of the statute as a whole. Considering the intent of
Congress in enacting the EPIRA and reading the statute in its entirety, it is plain to see that the law has
expanded the jurisdiction of the regulatory body, the ERC in this case, to enable the latter to implement
the reforms sought to be accomplished by the EPIRA. When the legislators decided to broaden the
jurisdiction of the ERC, they did not intend to abolish or reduce the powers already conferred upon
ERC's predecessors. To sustain the view that the ERC possesses only the powers and functions listed
under Section 43 of the EPIRA is to frustrate the objectives of the law.
In his Concurring and Dissenting Opinion[62] in the same case, then Associate Justice, now Chief Justice,
Reynato S. Puno described the immensity of police power in relation to the delegation of powers to the
ERC and its regulatory functions over electric power as a vital public utility, to wit:
Over the years, however, the range of police power was no longer limited to the preservation of public
health, safety and morals, which used to be the primary social interests in earlier times. Police power
now requires the State to "assume an affirmative duty to eliminate the excesses and injustices that are
the concomitants of an unrestrained industrial economy." Police power is now exerted "to further the
public welfare a concept as vast as the good of society itself." Hence, "police power is but another name
for the governmental authority to further the welfare of society that is the basic end of all
government." When police power is delegated to administrative bodies with regulatory functions, its
exercise should be given a wide latitude. Police power takes on an even broader dimension in
developing countries such as ours, where the State must take a more active role in balancing the many
conflicting interests in society. The Questioned Order was issued by the ERC, acting as an agent of the
State in the exercise of police power. We should have exceptionally good grounds to curtail its exercise.
This approach is more compelling in the field of rate-regulation of electric power rates. Electric power
generation and distribution is a traditional instrument of economic growth that affects not only a few
but the entire nation. It is an important factor in encouraging investment and promoting business. The
engines of progress may come to a screeching halt if the delivery of electric power is impaired. Billions of
pesos would be lost as a result of power outages or unreliable electric power services. The State thru the
ERC should be able to exercise its police power with great flexibility, when the need arises.
This was reiterated in National Association of Electricity Consumers for Reforms v. Energy Regulatory
Commission[63] where the Court held that the ERC, as regulator, should have sufficient power to respond
in real time to changes wrought by multifarious factors affecting public utilities.
From the foregoing disquisitions, we therefore hold that there is no undue delegation of legislative
power to the ERC.
Petitioners failed to pursue in their Memorandum the contention in the Complaint that the imposition
of the Universal Charge on all end-users is oppressive and confiscatory, and amounts to taxation
without representation. Hence, such contention is deemed waived or abandoned per Resolution [64] of
August 3, 2004.[65] Moreover, the determination of whether or not a tax is excessive, oppressive or
confiscatory is an issue which essentially involves questions of fact, and thus, this Court is precluded
from reviewing the same.[66]
As a penultimate statement, it may be well to recall what this Court said of EPIRA:
One of the landmark pieces of legislation enacted by Congress in recent years is the EPIRA. It established
a new policy, legal structure and regulatory framework for the electric power industry. The new thrust is
to tap private capital for the expansion and improvement of the industry as the large government debt
and the highly capital-intensive character of the industry itself have long been acknowledged as the
critical constraints to the program. To attract private investment, largely foreign, the jaded structure of
the industry had to be addressed. While the generation and transmission sectors were centralized and
monopolistic, the distribution side was fragmented with over 130 utilities, mostly small and
uneconomic. The pervasive flaws have caused a low utilization of existing generation capacity;
extremely high and uncompetitive power rates; poor quality of service to consumers; dismal to
forgettable performance of the government power sector; high system losses; and an inability to
develop a clear strategy for overcoming these shortcomings.
Thus, the EPIRA provides a framework for the restructuring of the industry, including the privatization of
the assets of the National Power Corporation (NPC), the transition to a competitive structure, and the
delineation of the roles of various government agencies and the private entities. The law ordains the
division of the industry into four (4) distinct
sectors, namely: generation, transmission, distribution and supply.
Corollarily, the NPC generating plants have to privatized and its transmission business spun off and
privatized thereafter.[67]
Finally, every law has in its favor the presumption of constitutionality, and to justify its nullification,
there must be a clear and unequivocal breach of the Constitution and not one that is doubtful,
speculative, or argumentative.[68] Indubitably, petitioners failed to overcome this presumption in favor
of the EPIRA. We find no clear violation of the Constitution which would warrant a pronouncement that
Sec. 34 of the EPIRA and Rule 18 of its IRR are unconstitutional and void.
WHEREFORE, the instant case is hereby DISMISSED for lack of merit.
SO ORDERED.
EN BANC
[G.R. No. 157036. June 9, 2004]
FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE
SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE
PNP, et al., respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of
peace and order[1] and the protection of the people against violence are constitutional duties of the
State, and the right to bear arms is to be construed in connection and in harmony with these
constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of
the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr., Chief of
the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP
stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She
directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms
Outside of Residence (PTCFOR), thus:
THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO DISTURB THE
PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST BEING THE KILLING OF FORMER NPA
LEADER ROLLY KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US
BRING THEM TO THE BAR OF JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW ENFORCEMENT
AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN
PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF PERMIT TO
CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO
OWNERSHIP AND POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC PLACES. FROM
NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT
OFFICERS CAN CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING
LAW. CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL BE GIVEN SPECIAL
AND TEMPORARY PERMITS FROM TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT
LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE CANNOT BE
HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE.
Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines quoted as
follows:
TO : All Concerned
FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.
2. General:
The possession and carrying of firearms outside of residence is a privilege granted by the State to its
citizens for their individual protection against all threats of lawlessness and security.
As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of
registration or MR) are prohibited from carrying their firearms outside of residence. However, the Chief,
Philippine National Police may, in meritorious cases as determined by him and under conditions as he
may impose, authorize such person or persons to carry firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of
firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential
Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also prescribes the conditions,
requirements and procedures under which exemption from the ban may be granted.
4. Specific Instructions on the Ban on the Carrying of Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR
may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed.
b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms
outside their residence except those covered with mission/letter orders and duty detail orders issued
by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall
pertain only to organic and regular employees.
5. The following persons may be authorized to carry firearms outside of residence.
a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and
security of those so authorized are under actual threat, or by the nature of their position, occupation
and profession are under imminent danger.
b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so
authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only
for the duration of the official mission which in no case shall be more than ten (10) days.
c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized
pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration.
d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of
practice and competition, provided, that such firearms while in transit must not be loaded with
ammunition and secured in an appropriate box or case detached from the person.
e. Authorized members of the Diplomatic Corps.
6. Requirements for issuance of new PTCFOR:
a. Written request by the applicant addressed to Chief, PNP stating his qualification to possess firearm
and the reasons why he needs to carry firearm outside of residence.
b. Xerox copy of current firearm license duly authenticated by Records Branch, FED;
c. Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or City
Directors and duly validated by C, RIID;
d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied;
e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;
f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied;
g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, Operations
Branch, FED;
h. NBI Clearance;
i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of filing of application; and
j. Proof of Payment
7. Procedures:
a. Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In the
provinces, the applications may also be submitted to the Police Regional Offices (PROs) and
Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the office of
the PTCFOR Secretariat. The processors, after ascertaining that the documentary requirements are in
order, shall issue the Order of Payment (OP) indicating the amount of fees payable by the applicant,
who in turn shall pay the fees to the Land Bank.
b. Applications, which are duly processed and prepared in accordance with existing rules and
regulations, shall be forwarded to the OCPNP for approval.
c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date of issue.
d. Applications for renewal of PTCFOR shall be processed in accordance with the provisions of par. 6
above.
e. Application for possession and carrying of firearms by diplomats in the Philippines shall be processed
in accordance with NHQ PNP Memo dated September 25, 2000, with Subj: Possession and Carrying of
Firearms by Diplomats in the Philippines.
8. Restrictions in the Carrying of Firearms:
a. The firearm must not be displayed or exposed to public view, except those authorized in uniform and
in the performance of their official duties.
b. The firearm shall not be brought inside public drinking and amusement places, and all other
commercial or public establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, requested the
Department of Interior and Local Government (DILG) to reconsider the implementation of the assailed
Guidelines.However, his request was denied. Thus, he filed the present petition impleading public
respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as Executive Secretary; and Gerry L. Barias, as
Chief of the PNP-Firearms and Explosives Division. He anchored his petition on the following grounds:
I
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH TO ALTER, MODIFY OR
AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND CANCELING EXISTING PERMITS FOR
GUNS TO BE CARRIED OUTSIDE RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE PRESIDENTIAL SPEECH NEVER
INVOKED POLICE POWER TO JUSTIFY THE GUN BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN
BAN VIOLATED THE PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF THE AUTHORITY
TO PROMULGATE THE PNP GUIDELINES.

2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER
SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF IMPLEMENTNG
GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE AMENDMENTS
THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED JOINTLY BY THE
DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF THE PHILIPPINE
CONSTABULARY.
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH THE PEOPLES
INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF
THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO
DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF PROTECTION AGAINST CRIME
DESPITE THE FACT THAT THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO THE
INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY PROTECTED PROPERTY
RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE OF POLICE POWER,
THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE
AND UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME
THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT REVOKED ALL EXISTING
PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE PAYMENT THE PNP RECEIVED FROM THOSE
WHO ALREADY PAID THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION BECAUSE THEY
ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-
OWNERS THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF
COLLECTIVELY, AND NPA) UNTOUCHED.
IX
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE IMPLEMENTED
LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY RETROACTIVELY
AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE
LONG BEFORE THEIR PROMULGATION.
Petitioners submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens right to bear arms is a constitutional right?;
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a violation of
his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of
courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP Chief is
authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own
and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the Constitution;
and (4) the assailed Guidelines do not constitute an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not an
iron-clad dictum. In several instances where this Court was confronted with cases of national interest
and of serious implications, it never hesitated to set aside the rule and proceed with the judicial
determination of the cases.[3] The case at bar is of similar import as it involves the citizens right to bear
arms.
I 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866[16] perpetuate such
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that only Congress can withhold his
right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane
transgressed the settled principle and arrogated upon themselves a power they do not possess the
legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government are distributed among three
coordinate and substantially independent departments: the legislative, the executive and the
judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within its
own sphere.[4]
Pertinently, the power to make laws the legislative power is vested in Congress. [5] Congress may not
escape its duties and responsibilities by delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void, on the principle that delegata potestas non
potest delegari delegated power may not be delegated.[6]
The rule which forbids the delegation of legislative power, however, is not absolute and inflexible. It
admits of exceptions. An exception sanctioned by immemorial practice permits the legislative body to
delegate its licensing power to certain persons, municipal corporations, towns, boards, councils,
commissions, commissioners, auditors, bureaus and directors.[7] Such licensing power includes the
power to promulgate necessary rules and regulations.[8]
The evolution of our laws on firearms shows that since the early days of our Republic, the legislatures
tendency was always towards the delegation of power. Act No. 1780, [9] delegated upon the Governor-
General (now the President) the authority (1) to approve or disapprove applications of any person for a
license to deal in firearms or to possess the same for personal protection, hunting and other lawful
purposes; and (2) to revoke such license any time.[10] Further, it authorized him to issue regulations
which he may deem necessary for the proper enforcement of the Act. [11] With the enactment of Act No.
2711, the Revised Administrative Code of 1917, the laws on firearms were integrated.[12] The Act
retained the authority of the Governor General provided in Act No. 1780. Subsequently, the growing
complexity in the Office of the Governor-General resulted in the delegation of his authority to the Chief
of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater issued Executive
Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his behalf in approving and
disapproving applications for personal, special and hunting licenses. This was followed by Executive
Order No. 61[14] designating the Philippine Constabulary (PC) as the government custodian of all
firearms, ammunitions and explosives. Executive Order No. 215,[15] issued by President Diosdado
Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to
approve or disapprove applications for personal, special and hunting license, but also the authority to
revoke the same. With the foregoing developments, it is accurate to say that the Chief of the
Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as Sections
authority of the Chief of the Constabulary. Section 2 specifically provides that any person or entity
desiring to possess any firearm shall first secure the necessary permit/license/authority from the Chief
of the Constabulary. With regard to the issuance of PTCFOR, Section 3 imparts: The Chief of
Constabulary may, in meritorious cases as determined by him and under such conditions as he may
impose, authorize lawful holders of firearms to carry them outside of residence. These provisions are
issued pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules
and regulations for the effective implementation of the decree.[17] At this juncture, it bears emphasis
that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines and that it was
issued by President Ferdinand E. Marcos in the exercise of his legislative power. [18]
In an attempt to evade the application of the above-mentioned laws and regulations, petitioner argues
that the Chief of the PNP is not the same as the Chief of the Constabulary, the PC being a mere unit or
component of the newly established PNP. He contends further that Republic Act No. 8294[19] amended
P.D. No. 1866 such that the authority to issue rules and regulations regarding firearms is now jointly
vested in the Department of Justice and the DILG, not the Chief of the Constabulary.[20]
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the Philippine
Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore,
assumed the latters licensing authority. Section 24 thereof specifies, as one of PNPs powers, the
issuance of licenses for the possession of firearms and explosives in accordance with law.[22] This is in
conjunction with the PNP Chiefs power to issue detailed implementing policies and instructions on such
matters as may be necessary to effectively carry out the functions, powers and duties of the PNP. [23]
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now the
PNP Chief) of his authority to promulgate rules and regulations for the effective implementation of P.D.
No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the
reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866 granting to
the Chief of the Constabulary the authority to issue rules and regulations regarding firearms remains
effective. Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly
issued by the Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with
the automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or city
jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect to the
beneficent provisions of R.A. No. 8294, thereby ensuring the early release and reintegration of the
convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban, arguing that she
has no authority to alter, modify, or amend the law on firearms through a mere speech.
First, it must be emphasized that President Arroyos speech was just an expression of her policy and a
directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted a law
through a mere speech.
Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the
Constitution specifies his power as Chief Executive, thus: The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. As
Chief Executive, President Arroyo holds the steering wheel that controls the course of her
government. She lays down policies in the execution of her plans and programs. Whatever policy she
chooses, she has her subordinates to implement them. In short, she has the power of
control. Whenever a specific function is entrusted by law or regulation to her subordinate, she may
act directly or merely direct the performance of a duty.[24] Thus, when President Arroyo directed
respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a subordinate to perform
an assigned duty. Such act is well within the prerogative of her office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right. This, he
mainly anchors on various American authorities. We therefore find it imperative to determine the
nature of the right in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not
only the American Constitution but also the discovery of firearms. [25]
A provision commonly invoked by the American people to justify their possession of firearms is the
Second Amendment of the Constitution of the United States of America, which reads:
A well regulated militia, being necessary for the security of free state, the right of the people to keep
and bear Arms, shall not be infringed.
An examination of the historical background of the foregoing provision shows that it pertains to the
citizens collective right to take arms in defense of the State, not to the citizens individual right to own
and possess arms. The setting under which the right was contemplated has a profound connection with
the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed
is evident in early American cases.
The first case involving the interpretation of the Second Amendment that reached the United States
Supreme Court is United States vs. Miller.[26] Here, the indictment charged the defendants with
transporting an unregistered Stevens shotgun without the required stamped written order, contrary to
the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the
indictment on the ground that the National Firearms Actoffends the inhibition of the Second
Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the
Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the
collective right of those comprising the Militia a body of citizens enrolled for military discipline. It
does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:
In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of
less than eighteen inches in length at this time has some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right
to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its use could contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of Appeals held
that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It
ruled that:
While [appellants] weapon may be capable of military use, or while at least familiarity with it might be
regarded as of value in training a person to use a comparable weapon of military type and caliber, still
there is no evidence that the appellant was or ever had been a member of any military organization
or that his use of the weapon under the circumstances disclosed was in preparation for a military
career. In fact, the only inference possible is that the appellant at the time charged in the indictment
was in possession of, transporting, and using the firearm and ammunition purely and simply on a
frolic of his own and without any thought or intention of contributing to the efficiency of the well
regulated militia which the Second amendment was designed to foster as necessary to the security of
a free state.
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the
American people the right to bear arms. In a more explicit language, the United States vs.
Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right granted by the
Constitution. Neither is it in any way dependent upon that instrument. Likewise, in People vs.
Persce,[29] the Court of Appeals said: Neither is there any constitutional provision securing the right to
bear arms which prohibits legislation with reference to such weapons as are specifically before us for
consideration. The provision in the Constitution of the United States that the right of the people to
keep and bear arms shall not be infringed is not designed to control legislation by the state.
With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine
Constitution. Our Constitution contains no provision similar to the Second Amendment, as we aptly
observed in the early case of United States vs. Villareal:[30]
The only contention of counsel which would appear to necessitate comment is the claim that the
statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of
firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of Rights.
Counsel does not expressly rely upon the prohibition in the United States Constitution against the
infringement of the right of the people of the United States to keep and bear arms (U. S. Constitution,
amendment 2), which is not included in the Philippine Bill. But it may be well, in passing, to point out
that in no event could this constitutional guaranty have any bearing on the case at bar, not only
because it has not been expressly extended to the Philippine Islands, but also because it has been
uniformly held that both this and similar provisions in State constitutions apply only to arms used in
civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x.
Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The
right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory
creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act
No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to regulate the
importation, acquisition, possession, use and transfer of firearms. Section 9 thereof provides:
SECTION 9. Any person desiring to possess one or more firearms for personal protection, or for use in
hunting or other lawful purposes only, and ammunition therefor, shall make application for a license
to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such
application, and before receiving the license, the applicant shall make a cash deposit in the postal
savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or
in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the
Government of the Philippine Islands, in the sum of two hundred pesos for each such
firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and
organized at the time of the passage of this Act, who at such time have a license to possess firearms,
shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly
executed by such person in accordance with existing law shall continue to be security for the
safekeeping of such arms.
The foregoing provision was restated in Section 887[31] of Act No. 2711 that integrated the firearm
laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal
possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and imposed
stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by
reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be
considered an inalienable or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that no person shall be deprived of life, liberty or
property without due process of law. Petitioner invokes this provision, asserting that the revocation of
his PTCFOR pursuant to the assailed Guidelines deprived him of his vested property right without due
process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or
property interest exists.[32] The bulk of jurisprudence is that a license authorizing a person to enjoy a
certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry,[33] we ruled
that a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority granting it and the person to whom it is granted; neither is it property
or a property right, nor does it create a vested right. In a more emphatic pronouncement, we held
in Oposa vs. Factoran, Jr.[34] that:
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protected by the due process clause of the Constitution.
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on Bell
vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is issued, continued possession
may become essential in the pursuit of livelihood. Suspension of issued licenses thus involves state
action that adjudicates important interest of the licensees.
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to bear
arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord with
our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. OBrien,[36] the plaintiff
who was denied a license to carry a firearm brought suit against the defendant who was the Chief of
Police of the City of Manhattan Beach, on the ground that the denial violated her constitutional rights to
due process and equal protection of the laws. The United States Court of Appeals Ninth Circuit ruled
that Erdelyi did not have a property interest in obtaining a license to carry a firearm, ratiocinating as
follows:
Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise
whenever a person has only an abstract need or desire for, or unilateral expectation of a benefit. x x x
Rather, they arise from legitimate claims of entitlement defined by existing rules or understanding
that stem from an independent source, such as state law. x x x
Concealed weapons are closely regulated by the State of California. x x x Whether the statute creates a
property interest in concealed weapons licenses depends largely upon the extent to which the statute
contains mandatory language that restricts the discretion of the [issuing authority] to deny licenses to
applicants who claim to meet the minimum eligibility requirements. x x x Where state law gives the
issuing authority broad discretion to grant or deny license application in a closely regulated field,
initial applicants do not have a property right in such licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);
Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs. King,[38] Nichols vs.
County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated that the test whether the
statute creates a property right or interest depends largely on the extent of discretion granted to the
issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident
from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that the Chief of
Constabulary may, in meritorious cases as determined by him and under such conditions as he may
impose, authorize lawful holders of firearms to carry them outside of residence. Following the American
doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under
our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It
does not confer an absolute right, but only a personal privilege to be exercised under existing
restrictions, and such as may thereafter be reasonably imposed.[41] A licensee takes his license subject to
such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license
is that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a
revocation of it does not deprive the defendant of any property, immunity, or privilege within the
meaning of these words in the Declaration of Rights.[42] The US Supreme Court, in Doyle vs. Continental
Ins. Co,[43] held: The correlative power to revoke or recall a permission is a necessary consequence of
the main power. A mere license by the State is always revocable.
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The
Government of the Philippine Islands vs. Amechazurra [44] we ruled:
x x x no private person is bound to keep arms. Whether he does or not is entirely optional with himself,
but if, for his own convenience or pleasure, he desires to possess arms, he must do so upon such terms
as the Government sees fit to impose, for the right to keep and bear arms is not secured to him by law.
The Government can impose upon him such terms as it pleases. If he is not satisfied with the terms
imposed, he should decline to accept them, but, if for the purpose of securing possession of the arms he
does agree to such conditions, he must fulfill them.
IV
Police Power
At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the
Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the States
police power. All property in the state is held subject to its general regulations, necessary to the
common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure, thus:
(1) The interests of the public generally, as distinguished from those of a particular class, require the
exercise of the police power; and
(2) The means employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates the essence of the constitutional guarantees
of substantive due process, equal protection, and non-impairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and
order in the society. Owing to the proliferation of crimes, particularly those committed by the New
Peoples Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed it
best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the assailed
Guidelines is the interest of the public in general.
The only question that can then arise is whether the means employed are appropriate and reasonably
necessary for the accomplishment of the purpose and are not unduly oppressive. In the instant case, the
assailed Guidelines do not entirely prohibit possession of firearms. What they proscribe is merely the
carrying of firearms outside of residence. However, those who wish to carry their firearms outside of
their residences may re-apply for a new PTCFOR. This we believe is a reasonable regulation. If the
carrying of firearms is regulated, necessarily, crime incidents will be curtailed. Criminals carry their
weapon to hunt for their victims; they do not wait in the comfort of their homes. With the revocation of
all PTCFOR, it would be difficult for criminals to roam around with their guns. On the other hand, it
would be easier for the PNP to apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been upheld as
reasonable exercise of the police power.[45] In State vs. Reams,[46] it was held that the legislature may
regulate the right to bear arms in a manner conducive to the public peace. With the promotion of public
peace as its objective and the revocation of all PTCFOR as the means, we are convinced that the
issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling
in United States vs. Villareal,[47] is relevant, thus:
We think there can be no question as to the reasonableness of a statutory regulation prohibiting the
carrying of concealed weapons as a police measure well calculated to restrict the too frequent resort to
such weapons in moments of anger and excitement. We do not doubt that the strict enforcement of
such a regulation would tend to increase the security of life and limb, and to suppress crime and
lawlessness, in any community wherein the practice of carrying concealed weapons prevails, and this
without being unduly oppressive upon the individual owners of these weapons. It follows that its
enactment by the legislature is a proper and legitimate exercise of the police power of the state.
V
Ex post facto law
In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an action done
before the passing of the law and which was innocent when done criminal, and punishes such action;
or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes
the punishment and inflicts a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or different testimony than
the law required at the time of the commission of the offense in order to convict the defendant.
We see no reason to devote much discussion on the matter. Ex post facto law prohibits retrospectivity
of penal laws.[49] The assailed Guidelines cannot be considered as an ex post facto law because it is
prospective in its application. Contrary to petitioners argument, it would not result in the punishment of
acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
[9]
AN ACT TO REGULATE THE IMPORTATION, ACQUISITION, POSSESSION, USE, AND TRANSFER OF
FIREARMS, AND TO PROHIBIT THE POSSESSION OF SAME EXCEPT IN COMPLIANCE WITH THE
PROVISIONS OF THIS ACT.
[10]
SECTION 11. An application for a personal license to possess firearms and ammunition, as herein
provided for, made by a resident of the city of Manila, shall be directed to the chief of police of said city,
and it shall be the duty of the chief of the police to forward the application to the Governor-General
with his recommendations. Any such application made by a resident of a province shall be directed to
the governor of the province who shall make his recommendations thereon and forward the application
to the senior inspector of the Constabulary of the province, who in turn shall make his
recommendations thereon and forward the application, through official channels, to the Governor-
General. The Governor-General may approve or disapprove any such application, and, in the event of
the approval, the papers shall be transmitted to the Director of Constabulary with instructions to
issue the license as hereinbefore provided. The Director of Constabulary, upon receiving and approving
the bond, or receiving the certificate of deposit duly endorsed to the order of the Insular Treasurer, shall
issue the license for the time fixed for such license as hereinafter provided, and the Director of
Constabulary shall transmit the license direct to the applicant, and shall notify the chief of police of the
city of Manila if the applicant resides in Manila, otherwise the senior inspector of Constabulary of the
province in which the applicant resides. The Director of Constabulary shall file the certificate of deposit
in his office. It shall be the duty of all officers through whom applications for licenses to possess firearms
are transmitted to expedite the same.
[11]
SECTION 30. The Governor-General is hereby authorized to issue executive orders prescribing the
forms and regulations which he may deem necessary for the proper enforcement of the provisions of
this Act.
[12]
SEC. 882. Issuance of special hunting permits. The Department Head may authorize the Chief of
Constabulary to issue special hunting permits to persons temporarily visiting the Philippine Islands,
without requiring a bond or deposit as a guarantee of security for their arms and ammunition. Such
special hunting permit shall be valid only during the temporary sojourn of the holder in the Islands, shall
be nontransferable, and shall be revocable at the pleasure of the Department Head.
SEC. 887. License required for individual keeping arms for personal use. Security to be given. Any person
desiring to possess one or more firearms for personal protection or for use in hunting or other lawful
purposes only, and ammunition thereof, shall make application for a license to possess such firearm or
firearms or ammunition as hereinafter provided. Upon making such application, and before receiving
the license, the applicant shall, for the purpose of security, make a cash deposit in the postal savings
bank in the sum of one hundred pesos for each firearm for which the license is to be issued, and shall
indorse the certificated of deposit therefor to the Insular Treasurer; or in lieu thereof he may give a
bond in such form as the Governor-General may prescribed, payable to the Government of the
Philippine Islands, in the sum of two hundred pesos for each such firearms.
SEC. 888. Mode of making application and acting upon the same. An application for a personal license to
possess firearms and ammunition, as herein provided, made by a resident of the City of Manila, shall be
directed to the Mayor of said city, whose duty it shall be to forward the application to the Governor-
General, with his recommendation. Applications made by residents of a province shall be directed to the
governor of the same, who shall make his recommendation thereon and forward them to the Governor-
General, who may approve or disapprove any such application.
SEC. 889. Duration of personal license. A personal firearms license shall continue in force until the death
or legal disability of the licensee, unless, prior thereto, the license shall be surrendered by him or
revoked by authority of the Governor-General.
SEC. 899. Revocation of firearms license by Governor-General. Any firearms license may be revoked at
any time by order of the Governor-General.
SEC. 905. Forms and regulations to be prescribed by Governor-General. The Governor-General shall
prescribe such forms and promulgate such regulations as he shall deem necessary for the proper
enforcement of this law.
[13]
(Delegating the CPC to Approve/Disapprove Applications)
15. In carrying out the provisions of Sections eight hundred and eighty-one, eight hundred and eighty-
two, eighty hundred and eighty-eight, as amended by Section two of Act two thousand seven hundred
and seventy-four, eight hundred and ninety-one and eight hundred and ninety-two of the
Administrative Code, empowering the Governor-General to approve and disapprove applications for
personal, special, and hunting licenses to possess firearms and ammunition, the Chief of Constabulary is
authorized and directed to act for the Governor-General.
[14]
Issued on December 5, 1924 by Governor-General Leonard Wood.
[15]
Pursuant to the provisions of Section 905, Administrative Code, as amended, empowering the
President of the Philippines to prescribe regulations for the enforcement of the provisions of the law
relating to the possession, use of firearms, etc., the following regulations are hereby promulgated.
SECTION 1. In carrying out the provision of Sections 881, 882 and 888 of the Revised Administrative
Code, empowering the President of the Philippines to approve or disapprove applications for personal,
special and hunting license to possess firearms and ammunition, the Chief of Constabulary or his
representative is authorized and directed to act for the President.
SECTION 2. In carrying out the provisions of Section 899 of the Revised Administrative Code,
empowering the President of the Philippines to revoke any firearm license anytime, the Chief of
Constabulary is authorized and directed to act for the President.
[16]
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES
FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.
[17]
Section 8 of P.D. No. 1866.
[18]
Baylosis vs. Chavez, Jr., G.R. No. 95136, October 3, 1991, 202 SCRA 405.
[19]
AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTITLED
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION
OR DISPOSITION OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR
RELEVANT PURPOSES. Issued on June 29, 1983.
[20]
Section 6 of R.A. No. 8294 provides:
SECTION 6. Rules and Regulations. The Department of Justice and the Department of the Interior and
Local Government shall jointly issue, within ninety (90) days after the approval of this Act, the
necessary rules and regulations pertaining to the administrative aspect of the provisions
hereof, furnishing the Committee on Public Order and Security and the Committee on Justice and
Human Rights of both Houses of Congress copies of such rules and regulations within thirty (30) days
from the promulgation hereof.
[21]
AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES. Approved December 13, 1990.
[22]
Under Section 2 (11), Chapter 1, Book 7 of Executive Order No. 292, the Administrative Code of 1987,
the term licensing includes agency process involving the grant, renewal, denial, revocation, suspension,
annulment, withdrawal, limitation, amendment, modification or conditioning of a license.
[23]
Section 26 of R.A. No. 6975.
[24]
Chapter 7, Book IV of E.O. No. 292.
[25]
Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens, from the
nobility to the peasants, were obliged to privately purchase weapons and be available for military
duty.[25] This body of armed citizens was known as the fyrd.
Following the Norman conquest, many of the Saxon rights were abridged, however, the right and duty
of arms possession was retained. Under the Assize of Arms of 1181, the whole community of freemen is
required to possess arms and to demonstrate to the Royal officials that each of them is appropriately
armed.
The Tudor monarchs continued the system of arm ownership and Queen Elizabeth added to it by
creating what came to be known as train bands that is, the selected portions of the citizenry chosen for
special training. These trained bands were distinguished from themilitia which term was first used
during the Spanish Armada crisis to designate the entire of the armed citizenry.
The militia played a pivotal role in the English political system. When civil war broke out in 1642, the
critical issue was whether the King or Parliament had the right to control the militia. After the war,
England, which was then under the control of a military government, ordered its officers to search for
and seize all arms owned by Catholics, opponents of the government, or any other person whom the
commissioners had judged dangerous to the peace of the Commonwealth.
The restoration of Charles II ended the military government. Charles II opened his reign with a variety of
repressive legislation. In 1662, a Militia Act was enacted empowering officials to search and to seize all
arms in the custody or possession of any person or persons whom the said lieutenants or any two or
more of their deputies shall judge dangerous to the peace of the kingdom. Such seizures of arms
continued under James I, who directed them particularly against the Irish population.
In 1668, the government of James was overturned in a peaceful uprising which came to be known
as The Glorious Revolution. Parliament promulgated a Declaration of Rights, later enacted as the Bill of
Rights. Before coronation, James successor, William of Orange, was required to swear to respect these
rights. The Bill of Rights, as drafted in the House of Commons, simply provided that the acts concerning
the militia are grievous to the subject and it is necessary for the public safety that the subjects, which are
protestants, should provide and keep arms for the common defense; And that the arms which have been
seized, and taken from them, be restored. The House of Lords changed this to a more concise
statement: That the subjects which are Protestant may have arms for their defense suitable to their
conditions and as allowed by law.
In the colonies, the prevalence of hunting as means of livelihood and the need for defense led to
armament statutes comparable to those of the early Saxon times. When the British government began
to increase its military presence therein in the mid-eighteenth century, Massachusetts responded by
calling upon its citizens to arm themselves in defense. In September 1774, an incorrect rumor that
British troops killed colonists prompted 60,000 citizens to take arms. A few months later, when Patrick
Henry delivered his famed Give me liberty or give me death speech, he spoke in support of a
proposition that a well regulated militia, composed of gentlemen and freemen, is the natural strength
and only security of a free government
When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to
James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the
States proposals for a Bill of Rights and sought to produce a briefer version incorporating all the vital
proposals of such States. Madison proposed among other rights: The right of the people to keep and
bear arms shall not be infringed; a well armed and regulated militia being the best security of a free
country; but no person religiously scrupulous of bearing arms shall be compelled to render military
service. In the House, this was initially modified so that the militia clause came before the proposal
recognizing the right. The proposal finally passed the House in its present form:A well regulated militia,
being necessary for the security of free state, the right of the people to keep and bear arms, shall not be
infringed. In this form it was submitted to the Senate, which passed it the following day.
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial Fiscal of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S. MATONDO, SEGUNDINO A, CAVAL and CIRILO M.
ZANORIA, respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an euphemistic phrase, of an
alternative penal sanction of imprisonment imposed by law but without a specification as to the term or
duration thereof.
As a consequence of such legislative faux pas or oversight, the petition at bar seeks to set aside the
decision of the then Court of First Instance of Leyte, Branch IV, dated September 8,1976, 1 penned by
herein respondent judge and granting the petition for certiorari and prohibition with preliminary
injunction filed by herein private respondents and docketed therein as Civil Case No. 5428, as well as his
resolution of October 19, 1976 2 denying the motions for reconsideration filed by the parties therein.
Subject of said decision were the issues on jurisdiction over violations of Republic Act No. 4670,
otherwise known as the Magna Carta for Public School Teachers, and the constitutionality of Section 32
thereof.
In a complaint filed by the Chief of Police of Hindang, Leyte on April 4, 1975, herein private respondents
Celestino S. Matondo, Segundino A. Caval and Cirilo M. Zanoria, public school officials of Leyte, were
charged before the Municipal Court of Hindang, Leyte in Criminal Case No. 555 thereof for violation of
Republic Act No. 4670. The case was set for arraignment and trial on May 29, 1975. At the arraignment,
the herein private respondents, as the accused therein, pleaded not guilty to the charge. Immediately
thereafter, they orally moved to quash the complaint for lack of jurisdiction over the offense allegedly
due to the correctional nature of the penalty of imprisonment prescribed for the offense. The motion to
quash was subsequently reduced to writing on June 13, 1975. 3 On August 21, 1975, the municipal court
denied the motion to quash for lack of merit. 4 On September 2, 1975, private respondents filed a
motion for the reconsideration of the aforesaid denial order on the same ground of lack of jurisdiction,
but with the further allegation that the facts charged do not constitute an offense considering that
Section 32 of Republic Act No. 4670 is null and void for being unconstitutional. In an undated order
received by the counsel for private respondents on October 20,1975, the motion for reconsideration
was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for certiorari and prohibition with
preliminary injunction before the former Court of First Instance of Leyte, Branch VIII, where it was
docketed as Civil Case No. B-622, to restrain the Municipal Judge, Provincial Fiscal and Chief of Police of
Hindang, Leyte from proceeding with the trial of said Criminal Case No. 555 upon the ground that the
former Municipal Court of Hindang had no jurisdiction over the offense charged. Subsequently, an
amended petition 7 alleged the additional ground that the facts charged do not constitute an offense
since the penal provision, which is Section 32 of said law, is unconstitutional for the following reasons:
(1) It imposes a cruel and unusual punishment, the term of imprisonment being unfixed and may run
to reclusion perpetua; and (2) It also constitutes an undue delegation of legislative power, the duration
of the penalty of imprisonment being solely left to the discretion of the court as if the latter were the
legislative department of the Government.
On March 30, 1976, having been advised that the petition of herein private respondents was related to
Criminal Case No. 1978 for violation of Presidential Decree No. 442 previously transferred from Branch
VIII to Branch IV of the erstwhile Court of First Instance of Leyte, Judge Fortunate B. Cuna of the former
branch transferred the said petition to the latter branch for further proceedings and where it was
subsequently docketed therein as Civil Case No. 5428. 8 On March 15, 1976, the petitioner herein filed
an opposition to the admission of the said amended petitions 9 but respondent judge denied the same
in his resolution of April 20, 1976. 10 On August 2, 1976, herein petitioner filed a supplementary
memorandum in answer to the amended petition. 11
On September 8, 1976, respondent judge rendered the aforecited challenged decision holding in
substance that Republic Act No. 4670 is valid and constitutional but cases for its violation fall outside of
the jurisdiction of municipal and city courts, and remanding the case to the former Municipal Court of
Hindang, Leyte only for preliminary investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion for reconsideration. 12 Likewise,
private respondents filed a motion for reconsideration of the lower court's decision but the same was
limited only to the portion thereof which sustains the validity of Section 32 of Republic Act No.
4670. 13 Respondent judge denied both motions for reconsideration in a resolution dated October 19,
1976. 14
The instant petition to review the decision of respondent judge poses the following questions of law: (1)
Whether the municipal and city courts have jurisdiction over violations of Republic Act No. 4670; and (2)
Whether Section 32 of said Republic Act No. 4670 is constitutional.
We shall resolve said queries in inverse order, since prior determination of the constitutionality of the
assailed provision of the law involved is necessary for the adjudication of the jurisdictional issue raised
in this petition.
1. The disputed section of Republic Act No. 4670 provides:
Sec. 32. Penal Provision. — A person who shall wilfully interfere with, restrain or coerce any teacher in
the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to
defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one
hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court.
(Emphasis supplied).
Two alternative and distinct penalties are consequently imposed, to wit: (a) a fine ranging from P100.00
to P1,000.00; or (b) imprisonment. It is apparent that the law has no prescribed period or term for the
imposable penalty of imprisonment. While a minimum and maximum amount for the penalty of fine is
specified, there is no equivalent provision for the penalty of imprisonment, although both appear to be
qualified by the phrase "in the discretion of the court.
Private respondents contend that a judicial determination of what Congress intended to be the duration
of the penalty of imprisonment would be violative of the constitutional prohibition against undue
delegation of legislative power, and that the absence of a provision on the specific term of
imprisonment constitutes that penalty into a cruel and unusual form of punishment. Hence, it is
vigorously asserted, said Section 32 is unconstitutional.
The basic principle underlying the entire field of legal concepts pertaining to the validity of legislation is
that in the enactment of legislation a constitutional measure is thereby created. In every case where a
question is raised as to the constitutionality of an act, the court employs this doctrine in scrutinizing the
terms of the law. In a great volume of cases, the courts have enunciated the fundamental rule that there
is a presumption in favor of the constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on the ground that the imposable but
indefinite penalty of imprisonment provided therein constitutes a cruel and unusual punishment, in
defiance of the express mandate of the Constitution. This contention is inaccurate and should be
rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a punishment authorized by statute is not cruel or unusual
or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so
wholly disproportionate to the nature of the offense as to shock the moral sense of the community.
Based on the principle, our Supreme Court has consistently overruled contentions of the defense that
the punishment of fine or imprisonment authorized by the statute involved is cruel and unusual.
(Legarda vs. Valdez, 1 Phil. 146; U.S. vs. Pico, 18 Phil. 386; People vs. Garay, 2 ACR 149; People vs.
Estoista 93 Phil. 647; People vs. Tiu Ua. 96 Phil. 738; People vs. Dionisio, 22 SCRA 1299). The language of
our Supreme Court in the first of the cases it decided after the last world war is appropriate here:
The Constitution directs that 'Excessive fines shall not be imposed, nor cruel and unusual punishment
inflicted.' The prohibition of cruel and unusual punishments is generally aimed at the form or character
of the punishment rather than its severity in respect of duration or amount, and apply to punishments
which never existed in America, or which public sentiment has regarded as cruel or obsolete (15 Am.
Jur., p. 172), for instance there (sic) inflicted at the whipping post, or in the pillory, burning at the stake,
breaking on the wheel, disemboweling, and the like (15 Am. Jur. Supra, Note 35 L.R.A. p. 561). Fine and
imprisonment would not thus be within the prohibition.' (People vs. de la Cruz, 92 Phil. 906). 16
The question that should be asked, further, is whether the constitutional prohibition looks only to the
form or nature of the penalty and not to the proportion between the penalty and the crime.
The answer thereto may be gathered from the pronouncement in People vs. Estoista, 17 where an
"excessive" penalty was upheld as constitutional and was imposed but with a recommendation for
executive clemency, thus:
... If imprisonment from 5 to 10 years is out of proportion to the present case in view of certain
circumstances, the law is not to be declared unconstitutional for this reason. The constitutionality of an
act of the legislature is not to be judged in the light of exceptional cases. Small transgressors for which
the heavy net was not spread are, like small fishes, bound to be caught, and it is to meet such a situation
as this that courts are advised to make a recommendation to the Chief Executive for clemency or
reduction of the penalty...
That the penalty is grossly disproportionate to the crime is an insufficient basis to declare the law
unconstitutional on the ground that it is cruel and unusual. The fact that the punishment authorized by
the statute is severe does not make it cruel or unusual. 18 In addition, what degree of disproportion the
Court will consider as obnoxious to the Constitution has still to await appropriate determination in due
time since, to the credit of our legislative bodies, no decision has as yet struck down a penalty for being
"cruel and unusual" or "excessive."
We turn now to the argument of private respondents that the entire penal provision in question should
be invalidated as an 49 "undue delegation of legislative power, the duration of penalty of imprisonment
being solely left to the discretion of the court as if the lattter were the legislative department of the
government."
Petitioner counters that the discretion granted therein by the legislature to the courts to determine the
period of imprisonment is a matter of statutory construction and not an undue delegation of legislative
power. It is contended that the prohibition against undue delegation of legislative power is concerned
only with the delegation of power to make laws and not to interpret the same. It is also submitted that
Republic Act No. 4670 vests in the courts the discretion, not to fix the period of imprisonment, but to
choose which of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his theory that "the principle of separation of
powers is not violated by vesting in courts discretion as to the length of sentence or amount of fine
between designated limits in sentencing persons convicted of crime. In such instance, the exercise of
judicial discretion by the courts is not an attempt to use legislative power or to prescribe and create a
law but is an instance of the administration of justice and the application of existing laws to the facts of
particular cases." 19 What respondent judge obviously overlooked is his own reference to penalties
"between designated limits."
In his commentary on the Constitution of the United States, Corwin wrote:
.. At least three distinct ideas have contributed to the development of the principle that legislative
power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of
separating the three powers of government if they can straightway remerge on their own motion? The
second is the concept of due process of laws which precludes the transfer of regulatory functions to
private persons. Lastly, there is the maxim of agency "Delegata potestas non potest delegari." 20
An apparent exception to the general rule forbidding the delegation of legislative authority to the courts With the deletion by invalidation of the provision on imprisonment in Section 32 of Republic Act No.
exists in cases where discretion is conferred upon said courts. It is clear, however, that when the courts 4670, as earlier discussed, the imposable penalty for violations of said law should be limited to a fine of
are said to exercise a discretion, it must be a mere legal discretion which is exercised in discerning the not less than P100.00 and not more than P1,000.00, the same to serve as the basis in determining which
course prescribed by law and which, when discerned, it is the duty of the court to follow. 21 court may properly exercise jurisdiction thereover. When the complaint against private respondents
was filed in 1975, the pertinent law then in force was Republic Act No. 296, as amended by Republic Act
So it was held by the Supreme Court of the United States that the principle of separation of powers is
No. 3828, under which crimes punishable by a fine of not more than P 3,000.00 fall under the original
not violated by vesting in courts discretion as to the length of sentence or the amount of fine between
jurisdiction of the former municipal courts. Consequently, Criminal Case No. 555 against herein private
designated limits in sentencing persons convicted of a crime. 22
respondents falls within the original jurisdiction of the Municipal Trial Court of Hindang, Leyte.
In the case under consideration, the respondent judge erronneously assumed that since the penalty of
WHEREFORE, the decision and resolution of respondent judge are hereby REVERSED and SET ASIDE.
imprisonment has been provided for by the legislature, the court is endowed with the discretion to
Criminal Case No. 555 filed against private respondents herein is hereby ordered to be remanded to the
ascertain the term or period of imprisonment. We cannot agree with this postulate. It is not for the
Municipal Trial Court of Hindang, Leyte for trial on the merits.
courts to fix the term of imprisonment where no points of reference have been provided by the
legislature. What valid delegation presupposes and sanctions is an exercise of discretion to fix the length SO ORDERED.
of service of a term of imprisonment which must be encompassed within specific or designated limits
provided by law, the absence of which designated limits well constitute such exercise as an undue
delegation, if not-an outright intrusion into or assumption, of legislative power.

Section 32 of Republic Act No. 4670 provides for an indeterminable period of imprisonment, with
neither a minimum nor a maximum duration having been set by the legislative authority. The courts are
thus given a wide latitude of discretion to fix the term of imprisonment, without even the benefit of any
sufficient standard, such that the duration thereof may range, in the words of respondent judge, from
one minute to the life span of the accused. Irremissibly, this cannot be allowed. It vests in the courts a
power and a duty essentially legislative in nature and which, as applied to this case, does violence to the
rules on separation of powers as well as the non-delegability of legislative powers. This time, the
preumption of constitutionality has to yield.

On the foregoing considerations, and by virtue of the separability clause in Section 34 of Republic Act
No. 4670, the penalty of imprisonment provided in Section 32 thereof should be, as it is hereby,
declared unconstitutional.

It follows, therefore, that a ruling on the proper interpretation of the actual term of imprisonment, as
may have been intended by Congress, would be pointless and academic. It is, however, worth
mentioning that the suggested application of the so-called rule or principle of parallelism, whereby a
fine of P1,000.00 would be equated with one year of imprisonment, does not merit judicial acceptance.
A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or
converted into a prison term; it is to be considered as a separate and independent penalty consonant
with Article 26 of the Revised Penal Code. 23 It is likewise declared a discrete principal penalty in the
graduated scales of penalties in Article 71 of said Code. There is no rule for transmutation of the amount
of a fine into a term of imprisonment. Neither does the Code contain any provision that a fine when
imposed in conjunction with imprisonment is subordinate to the latter penalty. In sum, a fine is as much
a principal penalty as imprisonment. Neither is subordinate to the other. 24

2. It has been the consistent rule that the criminal jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action. 25