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LEGISLATIVE INTERFERENCE however giving due course to the petition and the prayer therein.

Hence, the Act took effect after fifteen days following its publication,
G.R. No. 96409 February 14, 1992 or on January 1, 1991. 3

CITIZEN J. ANTONIO M. CARPIO, petitioner, Before we settle down on the merits of the petition, it would likewise
vs. be well to discuss albeit briefly the history of our police force and the
THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL GOVERNMENTS, reasons for the ordination of Section 6, Article XVI in our present
THE SECRETARY OF NATIONAL DEFENSE and THE NATIONAL Constitution.
TREASURER, respondents.
During the Commonwealth period, we had the Philippine
PARAS, J.: Constabulary as the nucleus of the Philippine Ground Force (PGF),
now the Armed Forces of the Philippines (AFP). The PC was made part
At the very outset, it should be well to set forth the constitutional of the PGF but its administrative, supervisory and directional control
provision that is at the core of the controversy now confronting us, was handled by the then Department of the Interior. After the war, it
thus: remained as the "National Police" under the Department of National
Defense, as a major service component of the AFP. 4
Article XVI, Section 6:
Later, the Integration Act of 1975 5 created the Integrated National
Police (INP) under the Office of the President, with the PC as the
The State shall establish and maintain one police force, which
nucleus, and the local police forces as the civilian components. The
stall be national in scope and civilian in character, to be
PC-INP was headed by the PC Chief who, as concurrent Director-
administered and controlled by a national police commission.
General of the INP, exercised command functions over the INP. 6
The authority of local executives over the police units in their
jurisdiction shall be provided by law. 1
The National Police Commission (NAPOLCOM) 7 exercised
administrative control and supervision while the local executives
With the aforequoted provision in mind, Congress passed Republic Act
exercised operational supervision and direction over the INP units
No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL
assigned within their respective localities. 8
POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" as the
consolidated version of House Bill No. 23614 and Senate Bill No. 463. The set-up whereby the INP was placed under the command of the
military component, which is the PC, severely eroded the INP's civilian
character and the multiplicity in the governance of the PC-INP
Following the said Act's approval by President Corazon C. Aquino on
resulted in inefficient police service. 9 Moreover, the integration of the
December 13, 1990, it was published on December 17, 1990. 2
national police forces with the PC also resulted in inequities since the
military component had superior benefits and privileges. 10
Presently, however, petitioner as citizen, taxpayer and member of the
Philippine Bar sworn to defend the Constitution, filed the petition now
The Constitutional Commission of 1986 was fully aware of the structural
at bar on December 20, 1990, seeking this Court's declaration of
errors that beset the system. Thus, Com. Teodulo C. Natividad
unconstitutionality of RA 6975 with prayer for temporary restraining
explained that:
order.

xxx xxx xxx


But in an en banc resolution dated December 27, 1990, We simply
required the public respondents to file their Comment, without
1

MR. NATIVIDAD. . . . The basic tenet of a modern To begin with, one need only refer to the fundamentally accepted
police organization is to remove it from the principle in Constitutional Law that the President has control of all
military. 11 executive departments, bureaus, and offices to lay at rest petitioner's
contention on the matter.
xxx xxx xxx
This presidential power of control over the executive branch of
Here in our draft Constitution, we have already made a government extends over all executive officers from Cabinet
constitutional postulate that the military cannot occupy any Secretary to the lowliest clerk 17 and has been held by us, in the
civil service position [in Section 6 of the Article on the Civil landmark case of Mondano vs. Silvosa, 18to mean "the power of [the
Service 12] Therefore, in keeping with this and because of the President] to alter or modify or nullify or set aside what a subordinate
universal acceptance that a police force is a civilian function, officer had done in the performance of his duties and to substitute the
a public service, and should not be performed by military judgment of the former with that of the latter." It is said to be at the
force, one of the basic reforms we are presenting here is that it very "heart of the meaning of Chief Executive." 19
should be separated from the military force which is the PC. 13
Equally well accepted, as a corollary rule to the control powers of the
xxx xxx xxx President, is the "Doctrine of Qualified Political Agency". As the
President cannot be expected to exercise his control powers all at the
Furthermore: same time and in person, 20he will have to delegate some of them to
his Cabinet members.
xxx xxx xxx
Under this doctrine, which recognizes the establishment of a single
executive, 21 "all executive and administrative organizations are
. . . the civilian police cannot blossom into full profession
adjuncts of the Executive Department, the heads of the various
because most of the key positions are being occupied by the
executive departments are assistants and agents of the Chief
military So, it is up to this Commission to remove the police from
Executive, and, except in cases where the Chief Executive is required
such a situation so that it can develop into a truly professional
by the Constitution or law to act in person on the exigencies of the
civilian police. . . . 14
situation demand that he act personally, the multifarious executive
and administrative functions of the Chief Executive are performed by
Hence, the "one police force, national in scope, and civilian in
and through the executive departments, and the acts of the
character" provision that is now Article XVI, Section 6 of the 1987
Secretaries of such departments, performed and promulgated in the
Constitution.
regular course of business, unless disapproved or reprobated by the
Chief Executive presumptively the acts of the Chief
And so we now come to the merits of the petition at hand. Executive." (emphasis ours)
22

In the main, petitioner herein respectfully advances the view that RA Thus, and in short, "the President's power of control is directly exercised
6975 emasculated the National Police Commission by limiting its by him over the members of the Cabinet who, in turn, and by his
power "to administrative control" over the Philippine National Police authority, control the bureaus and other offices under their respective
(PNP), thus, "control" remained with the Department Secretary under jurisdictions in the executive department." 23
whom both the National Police Commission and the PNP were
placed. 15
Additionally, the circumstance that the NAPOLCOM and the PNP are
placed under the reorganized Department of Interior and Local
We do not share this view. Government is merely an administrative realignment that would
2

bolster a system of coordination and cooperation among the xxx xxx xxx
citizenry, local executives and the integrated law enforcement
agencies and public safety agencies created under the assailed Sec. 35. . . . To enhance police operational efficiency and
Act, 24 the funding of the PNP being in large part subsidized by the effectiveness, the Chief of the PNP may constitute such other
national government. support units as may be necessary subject to the approval of
the Commission. . . .
Such organizational set-up does not detract from the mandate of the
Constitution that the national police force shall be administered and xxx xxx xxx
controlled by a national police commission as at any rate, and in fact,
the Act in question adequately provides for administration Sec. 37. . . . There shall be established a performance
and control at the commission level, as shown in the following evaluation system which shall be administered in accordance
provisions, to wit: with the rules, regulations and standards; and a code of
conduct promulgated by the Commission for members of the
Sec. 14. Powers and Functions of the Commission. — The PNP. . . .
Commission shall exercise the following powers and functions:
xxx xxx xxx
xxx xxx xxx
Petitioner further asserts that in manifest derogation of the power of
(i) Approve or modify plans and programs on education and control of the NAPOLCOM over the PNP, RA 6975 vested the power to
training, logistical requirements, communications, records, choose the PNP Provincial Director and the Chiefs of Police in the
information systems, crime laboratory, crime prevention and Governors and Mayors, respectively; the power of "operational
crime reporting; supervision and control" over police units in city and municipal mayors;
in the Civil Service Commission, participation in appointments to the
(j) Affirm, reverse or modify, through the National Appellate positions of Senior Superintendent to Deputy Director-General as well
Board, personnel disciplinary actions involving demotion or as the administration of qualifying entrance examinations; disciplinary
dismissal from the service imposed upon members of the powers over PNP members in the "People's Law Enforcement Boards"
Philippine National Police by the Chief of the PNP; and in city and municipal mayors. 25

(k) Exercise appellate jurisdiction through .the regional. Once more, we find no real controversy upon the foregoing assertions.
appellate boards over administrative cases against policemen
and over decisions on claims for police benefits; It is true that when the Constitutional Commissioners of 1986 provided
that the authority of local executives over the police units in their
xxx xxx xxx jurisdiction shall be provided by law, they intended that the day-to-
day functions of police work like crime, investigation, crime prevention
Sec. 26. The Command and direction of the PNP shall be activities, traffic control, etc., would be under the operational control
vested in the Chief of the PNP . . . Such command and of the local executives as it would not be advisable to give full control
direction of the Chief of the PNP may be delegated to of the police to the local executives. 26
subordinate officials with respect to the units under their
respective commands, in accordance with the rules and They reasoned that in the past, this gave rise to warlordism, bossism,
regulations prescribed by the Commission. . . . and sanctuaries for vices and abuses. 27

3

It would appear then that by vesting in the local executives the power under Section 51 because under this very same provision, it is clear
to choose the officers in question, the Act went beyond the bounds of that the local executives are only acting as representatives of the
the Constitution's intent. NAPOLCOM. . . . As such deputies, they are answerable to the
NAPOLCOM for their actions in the exercise of their functions under
Not so. We find light in the principle of constitutional construction that that section. Thus, unless countermanded by the NAPOLCOM, their
every presumption should be indulged in favor of constitutionality and acts are valid and binding as acts of the NAPOLCOM." 29 It is
the court in considering the validity of the statute in question should significant to note that the local officials, as NAPOLCOM
give it such reasonable construction as can be reached to bring it representatives, will choose the officers concerned from a list of
within the fundamental eligibles (those who meet the general qualifications for appointment
law. 28 to the PNP) 30 to be recommended by PNP officials.

Under the questioned provisions, which read as follows: The same holding is true with respect to the contention on the
operational supervision and control exercised by the local officials.
D. PARTICIPATION OF LOCAL EXECUTIVES IN THE Those officials would simply be acting as representatives of the
ADMINISTRATION OF THE PNP. Commission.

Sec. 51. Powers of Local Government Officials over the PNP As regards the assertion involving the Civil Service Commission, suffice
Units or Forces. it to say that the questioned provisions, which read:

Governors and mayors shall be deputized as representatives of Sec. 31. Appointment of PNP Officers and Members. — The
the Commission in their respective territorial jurisdictions. As Appointment of the officers and members of the PNP shall be
such, the local executives shall discharge the following effected in the following manner:
functions:
a.) Police Officer I to Senior Police Officer IV. — Appointed by
a.) Provincial Governor — (1) . . . the PNP regional director for regional personnel or by the Chief
of the PNP for national headquarters personnel and attested
by the Civil Service Commission;
The provincial governor shall choose the provincial director
from a list of three (3) eligibles recommended by the PNP
Regional Director. b.) Inspector to Superintendent. — Appointed by the Chief of
the PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
4) . . . City and municipal mayors shall have the following
authority over the PNP units in their respective jurisdictions:
c.) Senior Superintendent to Deputy Director-General. —
Appointed by the President upon recommendation of the
i.) Authority to choose the chief of police from a list of five (5)
Chief of the PNP, with proper endorsement by the Chairman of
eligibles recommended by the Provincial Police Director. . . .
the Civil Service
(Emphasis ours)
Commission . . .
full control remains with the National Police Commission.
Sec. 32. Examinations for Policemen. — The Civil Service
Commission shall administer the qualifying entrance
We agree, and so hold, with the view of the Solicitor General that
"there is no usurpation of the power of control of the NAPOLCOM
4

examinations for policemen on the basis of the standards set constitutes an "encroachment upon, interference with, and an
by the NAPOLCOM. abdication by the President of, executive control and commander-in-
chief powers."
precisely underscore the civilian character of the national police
force, and will undoubtedly professionalize the same. That We are not disposed to do for such is not the case at all here. A
rejection thus of petitioner's submission anent Section 12 of the Act
The grant of disciplinary powers over PNP members to the "People's should be in order in the light of the following exchanges during the
Law Enforcement Boards" (or the PLEB) and city and municipal mayors CONCOM deliberations of Wednesday, October 1, 1986:
is also not in derogation of the commission's power of control over the
PNP. xxx xxx xxx

Pursuant to the Act, the Commission exercises appellate jurisdiction, MR. RODRIGO. Just a few questions. The President of the
thru the regional appellate boards, over decisions of both the PLEB Philippines is the Commander-in-Chief of all the armed forces.
and the said mayors. This is so under Section 20(c). Furthermore, it is
the Commission which shall issue the implementing guidelines and MR. NATIVIDAD. Yes, Madam President.
procedures to be adopted by the PLEB for in the conduct of its
hearings, and it may assign NAPOLCOM hearing officers to act as MR. RODRIGO. Since the national police is not integrated with
legal consultants of the PLEBs (Section 43-d4, d5). the armed forces, I do not suppose they come under the
Commander-in-Chief powers of the President of the
As a disciplinary board primarily created to hear and decide citizen's Philippines.
complaints against erring officers and members of the PNP, the
establishment of PLEBs in every city, and municipality would all the MR. NATIVIDAD. They do, Madam President. By law they are
more help professionalize the police force. under the supervision and control of the President of the
Philippines.
Petitioner would likewise have this Court imagine that Section 12 of the
questioned Act, the pertinent portion of which reads: MR. RODRIGO. Yes, but the President is not the Commander-in-
Chief of the national police.
Sec. 12. Relationship of the Department with the Department
of National Defense. — During a period of twenty- four (24) MR. NATIVIDAD. He is the President.
months from the effectivity of this Act, the Armed Forces of the
Philippines (AFP) shall continue its present role of preserving the
MR. RODRIGO. Yes, the Executive. But they do not come under
internal and external security of the State: Provided, that said
that specific provision that the President is Commander-in-
period may be extended by the President, if he finds it
Chief of all the armed forces.
justifiable, for another period not exceeding twenty-four (24)
months, after which, the Department shall automatically take
MR. NATIVIDAD. No, not under the Commander-in-Chief
over from the AFP the primary role of preserving internal
provision.
security, leaving to the AFP its primary role of preserving
external security.
MR. RODRIGO. There are two other powers of the President.
The President has control over departments, bureaus and
xxx xxx xxx
offices, and supervision over local governments. Under which
does the police fall, under control or under supervision?
5

MR. NATIVIDAD. Both, Madam President. But there is not the least interference with the President's power of
control under Section 84. The Special Oversight Committee is simply
MR. RODRIGO. Control and Supervision. an ad hoc or transitory body, established and tasked solely with
planning and overseeing the immediate "transfer, merger and/or
MR. NATIVIDAD. Yes, in fact, the National Police Commission is absorption" into the Department of the Interior and Local
under the Office of the President. (CONCOM RECORDS, Vol. 5, Governments of the "involved agencies." This it will undertake in
p. 296) accordance with the phases of implementation already laid down in
Section 85 of the Act and once this is carried out, its functions as well
as the committee itself would cease altogether. 32 As an ad hoc body,
It thus becomes all too apparent then that the provision herein
its creation and the functions it exercises, decidedly do not constitute
assailed precisely gives muscle to and enforces the proposition that
an encroachment and in diminution of the power of control which
the national police force does not fall under the Commander-in-Chief
properly belongs to the President. What is more, no executive
powers of the President. This is necessarily so since the police force, not
department, bureau or office is placed under the control or authority,
being integrated with the military, is not a part of the Armed Forces of
of the committee. 33
the Philippines. As a civilian agency of the government, it properly
comes within, and is subject to, the exercise by the President of the
power of executive control. As a last word, it would not be amiss to point out here that under the
Constitution, there are the so-called independent Constitutional
Commissions, namely: The Civil Service Commission, Commission on
Consequently, Section 12 does not constitute abdication of
Audit, and the Commission on Elections. (Article IX-A, Section 1)
commander-in-chief powers. It simply provides for the transition period
or process during which the national police would gradually assume
the civilian function of safeguarding the internal security of the State. As these Commissions perform vital governmental functions, they have
Under this instance, the President, to repeat, abdicates nothing of his to be protected from external influences and political pressures.
war powers. It would bear to here state, in reiteration of the Hence, they were made constitutional bodies, independent of and
preponderant view, that the President, as Commander-in-Chief, is not not under any department of the government. 34 Certainly, they are
a member of the Armed Forces. He remains a civilian whose duties not under the control of the President.
under the Commander-in-Chief provision "represent only a part of the
organic duties imposed upon him. All his other functions are clearly The Constitution also created an independent office called the
civil in nature." 31 His position as a civilian Commander-in-Chief is "Commission on Human Rights." (Article XIII, Section 17[1]).However,
consistent with, and a testament to, the constitutional principle that this Commission is not on the same level as the Constitutional
"civilian authority is, at all times, supreme over the military." (Article II, Commissions under Article IX, although it is independent like the latter
Section 3, 1987 Constitution) Commissions. 35 It still had to be constituted thru Executive Order No.
163 (dated May 5, 1987).
Finally, petitioner submits that the creation of a "Special Oversight
Committee" under Section 84 of the Act, especially the inclusion In contrast, Article XVI, Section 6 thereof, merely mandates the
therein of some legislators as members (namely: the respective statutory creation of a national police commission that will administer
Chairmen of the Committee on Local Government and the and control the national police force to be established thereunder.
Committee on National Defense and Security in the Senate, and the
respective Chairmen of the Committee on Public Order and Security This commission is, for obvious reasons, not in the same category as
and the Committee on National Defense in the House of the independent Constitutional Commissions of Article IX and the
Representatives) is an "unconstitutional encroachment upon and a other constitutionally created independent Office, namely, the
diminution of, the President's power of control over all executive Commission on Human Rights.
departments, bureaus and offices."
6

By way of resume, the three Constitutional Commissions (Civil Service,
Audit, Elections) and the additional commission created by the
Constitution (Human Rights) are all independent of the Executive; but
the National Police Commission is not. 36 In fact, it was stressed during
the CONCOM deliberations that this commission would be under the
President, and hence may be controlled by the President, thru his or
her alter ego, the Secretary of the Interior and Local Government.

WHEREFORE, having in view all of the foregoing holdings, the instant


petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Padilla,


Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and
Nocon, JJ., concur.

7

LEGISLATIVE INTERFERENCE mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the
Court held:
G.R. No. 157013. July 10, 2003
Objections to taxpayers suit for lack of sufficient personality standing,
ATTY. ROMULO B. MACALINTAL, Petitioner, vs. COMMISSION ON or interest are, however, in the main procedural matters. Considering
ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as the importance to the public of the cases at bar, and in keeping with
Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the the Courts duty, under the 1987 Constitution, to determine whether or
Department of Budget and Management, respondents. not the other branches of government have kept themselves within
the limits of the Constitution and the laws and that they have not
AUSTRIA-MARTINEZ, J.: abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these
petitions.6cräläwvirtualibräry
Before the Court is a petition for certiorari and prohibition filed by
Romulo B. Macalintal, a member of the Philippine Bar, seeking a
declaration that certain provisions of Republic Act No. 9189 (The Indeed, in this case, the Court may set aside procedural rules as the
Overseas Absentee Voting Act of 2003)[1suffer from constitutional constitutional right of suffrage of a considerable number of Filipinos is
infirmity. Claiming that he has actual and material legal interest in the involved.
subject matter of this case in seeing to it that public funds are properly
and lawfully used and appropriated, petitioner filed the instant The question of propriety of the instant petition which may appear to
petition as a taxpayer and as a lawyer. be visited by the vice of prematurity as there are no ongoing
proceedings in any tribunal, board or before a government official
The Court upholds the right of petitioner to file the present petition. exercising judicial, quasi-judicial or ministerial functions as required by
Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner. In Taada vs. Angara,7 the
R.A. No. 9189, entitled, An Act Providing for A System of Overseas
Court held:
Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes, appropriates
funds under Section 29 thereof which provides that a supplemental In seeking to nullify an act of the Philippine Senate on the ground that
budget on the General Appropriations Act of the year of its it contravenes the Constitution, the petition no doubt raises a
enactment into law shall provide for the necessary amount to carry justiciable controversy. Where an action of the legislative branch is
out its provisions. Taxpayers, such as herein petitioner, have the right to seriously alleged to have infringed the Constitution, it becomes not
restrain officials from wasting public funds through the enforcement of only the right but in fact the duty of the judiciary to settle the dispute.
an unconstitutional statute.2The Court has held that they may assail The question thus posed is judicial rather than political. The duty (to
the validity of a law appropriating public funds3 because expenditure adjudicate) remains to assure that the supremacy of the Constitution
of public funds by an officer of the State for the purpose of executing is upheld. Once a controversy as to the application or interpretation of
an unconstitutional act constitutes a misapplication of such constitutional provision is raised before this Court (as in the instant
funds.4cräläwvirtualibräry case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide.
The challenged provision of law involves a public right that affects a
great number of citizens. The Court has adopted the policy of taking In another case of paramount impact to the Filipino people, it has
jurisdiction over cases whenever the petitioner has seriously and been expressed that it is illogical to await the adverse consequences
convincingly presented an issue of transcendental significance to the of the law in order to consider the controversy actual and ripe for
Filipino people. This has been explicitly pronounced in Kapatiran ng judicial resolution.8 In yet another case, the Court said that:

8

. . . despite the inhibitions pressing upon the Court when confronted The Court will resolve the questions in seriatim.
with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of
conclusion, its only criterion will be the Constitution and God as its the 1987 Constitution of the Republic of the Philippines?
conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are Section 5(d) provides:
irrelevancies that cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power of the Congress
Sec. 5. Disqualifications. The following shall be disqualified from voting
and Executive, the Court will not hesitate to make the hammer fall
under this Act:
heavily, where the acts of these departments, or of any official, betray
the peoples will as expressed in the Constitution . . .9cräläwvirtualibräry
.........
The need to consider the constitutional issues raised before the Court
d) An immigrant or a permanent resident who is recognized as such in
is further buttressed by the fact that it is now more than fifteen years
the host country, unless he/she executes, upon registration, an
since the ratification of the 1987 Constitution requiring Congress to
affidavit prepared for the purpose by the Commission declaring that
provide a system for absentee voting by qualified Filipinos abroad.
he/she shall resume actual physical permanent residence in the
Thus, strong reasons of public policy demand that the Court resolves
Philippines not later than three (3) years from approval of his/her
the instant petition10 and determine whether Congress has acted
registration under this Act. Such affidavit shall also state that he/she
within the limits of the Constitution or if it had gravely abused the
has not applied for citizenship in another country. Failure to return shall
discretion entrusted to it.11cräläwvirtualibräry
be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her
The petitioner raises three principal questions:
permanent disqualification to vote in absentia.

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
Petitioner posits that Section 5(d) is unconstitutional because it violates
voters who are immigrants or permanent residents in other countries
Section 1, Article V of the 1987 Constitution which requires that the
by their mere act of executing an affidavit expressing their intention to
voter must be a resident in the Philippines for at least one year and in
return to the Philippines, violate the residency requirement in Section 1
the place where he proposes to vote for at least six months
of Article V of the Constitution?
immediately preceding an election. Petitioner cites the ruling of the
Court in Caasi vs. Court of Appeals[12 to support his claim. In that
B. Does Section 18.5 of the same law empowering the COMELEC to case, the Court held that a green card holder immigrant to the United
proclaim the winning candidates for national offices and party list States is deemed to have abandoned his domicile and residence in
representatives including the President and the Vice-President violate the Philippines.
the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-
Petitioner further argues that Section 1, Article V of the Constitution
President shall be proclaimed as winners by Congress?
does not allow provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political
C : May Congress, through the Joint Congressional Oversight exercise;[13 that the legislature should not be allowed to circumvent
Committee created in Section 25 of Rep. Act No. 9189, exercise the the requirement of the Constitution on the right of suffrage by
power to review, revise, amend, and approve the Implementing Rules providing a condition thereon which in effect amends or alters the
and Regulations that the Commission on Elections shall promulgate aforesaid residence requirement to qualify a Filipino abroad to
without violating the independence of the COMELEC under Section 1, vote.[14 He claims that the right of suffrage should not be granted to
Article IX-A of the Constitution?
9

anyone who, on the date of the election, does not possess the abandoned their Philippine domicile; that indubitably, they would
qualifications provided for by Section 1, Article V of the Constitution. have formally and categorically expressed the requisite intentions,
i.e., animus manendiand animus revertendi; that Filipino immigrants
Respondent COMELEC refrained from commenting on this issue.[15 and permanent residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of the
In compliance with the Resolution of the Court, the Solicitor General Constitution upon approval of their registration, conformably with R.A.
filed his comment for all public respondents. He contraposes that the No. 9189.22cräläwvirtualibräry
constitutional challenge to Section 5(d) must fail because of the
absence of clear and unmistakable showing that said provision of law The seed of the present controversy is the interpretation that is given to
is repugnant to the Constitution. He stresses: All laws are presumed to the phrase, qualified citizens of the Philippines abroad as it appears in
be constitutional; by the doctrine of separation of powers, a R.A. No. 9189, to wit:
department of government owes a becoming respect for the acts of
the other two departments; all laws are presumed to have adhered to SEC. 2. Declaration of Policy. It is the prime duty of the State to provide
constitutional limitations; the legislature intended to enact a valid, a system of honest and orderly overseas absentee voting that upholds
sensible, and just law. the secrecy and sanctity of the ballot. Towards this end, the State
ensures equal opportunity to all qualified citizens of the Philippines
In addition, the Solicitor General points out that Section 1, Article V of abroad in the exercise of this fundamental right.
the Constitution is a verbatim reproduction of those provided for in the
1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal SEC. 3. Definition of Terms. For purposes of this Act:
of the House of Representatives16 wherein the Court held that the term
residence has been understood to be synonymous with domicile a) Absentee Voting refers to the process by which qualified citizens of
under both Constitutions. He further argues that a person can have the Philippines abroad, exercise their right to vote;
only one domicile but he can have two residences, one permanent
(the domicile) and the other temporary;17 and that the definition and . . . (Emphasis supplied)
meaning given to the term residence likewise applies to absentee
voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates
f) Overseas Absentee Voter refers to a citizen of the Philippines who is
the Courts ruling in Faypon vs. Quirino,19 the Solicitor General maintains
qualified to register and vote under this Act, not otherwise disqualified
that Filipinos who are immigrants or permanent residents abroad may
by law, who is abroad on the day of elections. (Emphasis supplied)
have in fact never abandoned their Philippine
domicile.20cräläwvirtualibräry
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on
Taking issue with the petitioners contention that green card holders
the day of elections, may vote for president, vice-president, senators
are considered to have abandoned their Philippine domicile, the
and party-list representatives. (Emphasis supplied)
Solicitor General suggests that the Court may have to discard its ruling
in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and
in relation to Sections 1 and 2, Article V of the Constitution which read:
permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No.
9189. He maintains that through the execution of the requisite SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
affidavits, the Congress of the Philippines with the concurrence of the otherwise disqualified by law, who are at least eighteen years of age,
President of the Republic had in fact given these immigrants and and who shall have resided in the Philippines for at least one year and
permanent residents the opportunity, pursuant to Section 2, Article V in the place wherein they propose to vote for at least six months
of the Constitution, to manifest that they had in fact never
10

immediately preceding the election. No literacy, property, or other The Constitution is the fundamental and paramount law of the nation
substantive requirement shall be imposed on the exercise of suffrage. to which all other laws must conform and in accordance with which
all private rights must be determined and all public authority
SEC. 2. The Congress shall provide a system for securing the secrecy administered.23 Laws that do not conform to the Constitution shall be
and sanctity of the ballot as well as a system for absentee voting by stricken down for being unconstitutional.
qualified Filipinos abroad.
Generally, however, all laws are presumed to be constitutional.
. . . . . . . . . (Emphasis supplied) In Peralta vs. COMELEC, the Court said:

Section 1, Article V of the Constitution specifically provides that . . . An act of the legislature, approved by the executive, is presumed
suffrage may be exercised by (1) all citizens of the Philippines, (2) not to be within constitutional limitations. The responsibility of upholding
otherwise disqualified by law, (3) at least eighteen years of age, (4) the Constitution rests not on the courts alone but on the legislature as
who are residents in the Philippines for at least one year and in the well. The question of the validity of every statute is first determined by
place where they propose to vote for at least six months immediately the legislative department of the government
preceding the election. Under Section 5(d) of R.A. No. 9189, one of itself.24cräläwvirtualibräry
those disqualified from voting is an immigrant or permanent resident
who is recognized as such in the host country unless he/she executes Thus, presumption of constitutionality of a law must be overcome
an affidavit declaring that he/she shall resume actual physical convincingly:
permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act. . . . To declare a law unconstitutional, the repugnancy of that law to
the Constitution must be clear and unequivocal, for even if a law is
Petitioner questions the rightness of the mere act of execution of an aimed at the attainment of some public good, no infringement of
affidavit to qualify the Filipinos abroad who are immigrants or constitutional rights is allowed. To strike down a law there must be a
permanent residents, to vote. He focuses solely on Section 1, Article V clear showing that what the fundamental law condemns or prohibits,
of the Constitution in ascribing constitutional infirmity to Section 5(d) of the statute allows it to be done.25cräläwvirtualibräry
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified Filipinos As the essence of R.A. No. 9189 is to enfranchise overseas qualified
abroad. Filipinos, it behooves the Court to take a holistic view of the pertinent
provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed constitutional construction that the Constitution should be construed
give the impression that it contravenes Section 1, Article V of the as a whole. In Chiongbian vs. De Leon,26 the Court held that a
Constitution. Filipino immigrants and permanent residents overseas are constitutional provision should function to the full extent of its
perceived as having left and abandoned the Philippines to live substance and its terms, not by itself alone, but in conjunction with all
permanently in their host countries and therefore, a provision in the other provisions of that great document. Constitutional provisions are
law enfranchising those who do not possess the residency requirement mandatory in character unless, either by express statement or by
of the Constitution by the mere act of executing an affidavit necessary implication, a different intention is manifest.27 The intent of
expressing their intent to return to the Philippines within a given period, the Constitution may be drawn primarily from the language of the
risks a declaration of unconstitutionality. However, the risk is more document itself. Should it be ambiguous, the Court may consider the
apparent than real. intent of its framers through their debates in the constitutional
convention.28cräläwvirtualibräry

11

R.A. No. 9189 was enacted in obeisance to the mandate of the first Further, in passing on statutes regulating absentee voting, the court
paragraph of Section 2, Article V of the Constitution that Congress should look to the whole and every part of the election laws, the intent
shall provide a system for voting by qualified Filipinos abroad. It must of the entire plan, and reasons and spirit of their adoption, and try to
be stressed that Section 2 does not provide for the parameters of the give effect to every portion thereof.29 (Emphasis supplied)
exercise of legislative authority in enacting said law. Hence, in the
absence of restrictions, Congress is presumed to have duly exercised Ordinarily, an absentee is not a resident and vice versa; a person
its function as defined in Article VI (The Legislative Department) of the cannot be at the same time, both a resident and an
Constitution. absentee.30 However, under our election laws and the countless
pronouncements of the Court pertaining to elections, an absentee
To put matters in their right perspective, it is necessary to dwell first on remains attached to his residence in the Philippines as residence is
the significance of absentee voting. The concept of absentee voting considered synonymous with domicile.
is relatively new. It is viewed thus:
In Romualdez-Marcos,31 the Court enunciated:
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a Article 50 of the Civil Code decrees that [f]or the exercise of civil rights
new and different manner of voting from that previously known, and and the fulfillment of civil obligations, the domicile of natural persons is
an exception to the customary and usual manner of voting. The right their place of habitual residence. In Ong vs. Republic, this court took
of absentee and disabled voters to cast their ballots at an election the concept of domicile to mean an individuals permanent home, a
is purely statutory; absentee voting was unknown to, and not place to which, whenever absent for business or for pleasure, one
recognized at, the common law. intends to return, and depends on facts and circumstances in the
sense that they disclose intent. Based on the foregoing, domicile
Absentee voting is an outgrowth of modern social and economic includes the twin elements of the fact of residing or physical presence
conditions devised to accommodate those engaged in military or civil in a fixed place and animus manendi, or the intention of returning
life whose duties make it impracticable for them to attend their polling there permanently.
places on the day of election, and the privilege of absentee voting
may flow from constitutional provisions or be conferred by statutes, Residence, in its ordinary conception, implies the factual relationship
existing in some jurisdictions, which provide in varying terms for the of an individual to a certain place. It is the physical presence of a
casting and reception of ballots by soldiers and sailors or other person in a given area, community or country. The essential distinction
qualified voters absent on election day from the district or precinct of between residence and domicile in law is that residence involves the
their residence. intent to leave when the purpose for which the resident has taken up
his abode ends. One may seek a place for purposes such as pleasure,
Such statutes are regarded as conferring a privilege and not a right, or business, or health. If a persons intent be to remain, it becomes his
an absolute right. When the legislature chooses to grant the right by domicile; if his intent is to leave as soon as his purpose is established it is
statute, it must operate with equality among all the class to which it is residence. It is thus, quite perfectly normal for an individual to have
granted; but statutes of this nature may be limited in their application different residences in various places. However, a person can only
to particular types of elections. The statutes should be construed in the have a single domicile, unless, for various reasons, he successfully
light of any constitutional provisions affecting registration and abandons his domicile in favor of another domicile of choice.
elections, and with due regard to their texts prior to amendment and In Uytengsu vs. Republic, we laid this distinction quite clearly:
to predecessor statutes and the decisions thereunder; they should also
be construed in the light of the circumstances under which they were There is a difference between domicile and residence. Residence is
enacted; and so as to carry out the objects thereof, if this can be used to indicate a place of abode, whether permanent or temporary;
done without doing violence to their provisions and mandates. domicile denotes a fixed permanent residence to which, when
12

absent, one has the intention of returning. A man may have a those who on their own or under pressure of economic necessity here,
residence in one place and a domicile in another. Residence is not find that they have to detach themselves from their families to work in
domicile, but domicile is residence coupled with the intention to other countries with definite tenures of employment. Many of them
remain for an unlimited time. A man can have but one domicile for are on contract employment for one, two, or three years. They have
the same purpose at any time, but he may have numerous places of no intention of changing their residence on a permanent basis, but
residence. His place of residence is generally his place of domicile, but are technically disqualified from exercising the right of suffrage in their
it is not by any means necessarily so since no length of residence countries of destination by the residential requirement in Section 1
without intention of remaining will constitute domicile. which says:

For political purposes the concepts of residence and domicile are Suffrage shall be exercised by all citizens of the Philippines not
dictated by the peculiar criteria of political laws. As these concepts otherwise disqualified by law, who are eighteen years of age or over,
have evolved in our election law, what has clearly and unequivocally and who shall have resided in the Philippines for at least one year and
emerged is the fact that residence for election purposes is used in the place wherein they propose to vote for at least six months
synonymously with domicile.32 (Emphasis supplied) preceding the election.

Aware of the domiciliary legal tie that links an overseas Filipino to his I, therefore, ask the Committee whether at the proper time they might
residence in this country, the framers of the Constitution considered entertain an amendment that will make this exercise of the right to
the circumstances that impelled them to require Congress to establish vote abroad for Filipino citizens an effective, rather than merely a
a system for overseas absentee voting, thus: nominal right under this proposed Constitution.

MR. OPLE. With respect to Section 1, it is not clear whether the right of FR. BERNAS. Certainly, the Committee will consider that. But more than
suffrage, which here has a residential restriction, is not denied to just saying that, I would like to make a comment on the meaning of
citizens temporarily residing or working abroad. Based on the statistics residence in the Constitution because I think it is a concept that has
of several government agencies, there ought to be about two million been discussed in various decisions of the Supreme Court, particularly
such Filipinos at this time. Commissioner Bernas had earlier pointed out in the case of Faypon vs. Quirino, a 1954 case which dealt precisely
that these provisions are really lifted from the two previous with the meaning of residence in the Election Law. Allow me to quote:
Constitutions of 1935 and 1973, with the exception of the last
paragraph. They could not therefore have foreseen at that time the A citizen may leave the place of his birth to look for greener pastures,
phenomenon now described as the Filipino labor force explosion as the saying goes, to improve his lot and that, of course, includes
overseas. study in other places, practice of his avocation, reengaging in
business. When an election is to be held, the citizen who left his
According to government data, there are now about 600,000 birthplace to improve his lot may decide to return to his native town,
contract workers and employees, and although the major portions of to cast his ballot, but for professional or business reasons, or for any
these expatriate communities of workers are to be found in the Middle other reason, he may not absent himself from the place of his
East, they are scattered in 177 countries in the world. professional or business activities.

In a previous hearing of the Committee on Constitutional Commissions So, they are here registered as voters as he has the qualifications to be
and Agencies, the Chairman of the Commission on Elections, Ramon one, and is not willing to give up or lose the opportunity to choose the
Felipe, said that there was no insuperable obstacle to making officials who are to run the government especially in national
effective the right of suffrage for Filipinos overseas. Those who have elections. Despite such registration, the animus revertendi to his home,
adhered to their Filipino citizenship notwithstanding strong temptations to his domicile or residence of origin has not forsaken him.
are exposed to embrace a more convenient foreign citizenship. And
13

This may be the explanation why the registration of a voter in a place The Constitutional Commission realized that under the laws then
other than his residence of origin has not been deemed sufficient to existing and considering the novelty of the system of absentee voting
consider abandonment or loss of such residence of origin. in this jurisdiction, vesting overseas Filipinos with the right to vote would
spawn constitutional problems especially because the Constitution
In other words, residence in this provision refers to two residence itself provides for the residency requirement of voters:
qualifications: residence in the Philippines and residence in the place
where he will vote. As far as residence in the Philippines is concerned, MR. REGALADO. Before I act on that, may I inquire from Commissioner
the word residence means domicile, but as far as residence in the Monsod if the term absentee voting also includes transient voting;
place where he will actually cast his ballot is concerned, the meaning meaning, those who are, let us say, studying in Manila need not go
seems to be different. He could have a domicile somewhere else and back to their places of registration, for instance, in Mindanao, to cast
yet he is a resident of a place for six months and he is allowed to vote their votes.
there. So that there may be serious constitutional obstacles to
absentee voting, unless the vote of the person who is absent is a vote MR. MONSOD. I think our provision is for absentee voting by Filipinos
which will be considered as cast in the place of his domicile. abroad.

MR. OPLE. Thank you for citing the jurisprudence. MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of MR. MONSOD. Under the present Election Code, there are provisions
these overseas Filipino communities. The Committee, of course, is for allowing students and military people who are temporarily in
aware that when this Article of the Constitution explicitly and another place to register and vote. I believe that those situations can
unequivocally extends the right of effective suffrage to Filipinos be covered by the Omnibus Election Code. The reason we want
abroad, this will call for a logistical exercise of global proportions. In absentee voting to be in the Constitution as a mandate to the
effect, this will require budgetary and administrative commitments on legislature is that there could be inconsistency on the residence rule if
the part of the Philippine government, mainly through the COMELEC it is just a question of legislation by Congress. So, by allowing it and
and the Ministry of Foreign Affairs, and perhaps, a more extensive saying that this is possible, then legislation can take care of the
elaboration of this mechanism that will be put in place to make rest.34 (Emphasis supplied)
effective the right to vote. Therefore, seeking shelter in some wise
jurisprudence of the past may not be sufficient to meet the demands Thus, Section 2, Article V of the Constitution came into being to
of the right of suffrage for Filipinos abroad that I have mentioned. But I remove any doubt as to the inapplicability of the residency
want to thank the Committee for saying that an amendment to this requirement in Section 1. It is precisely to avoid any problems that
effect may be entertained at the proper time. . . . . . . . . . could impede the implementation of its pursuit to enfranchise the
largest number of qualified Filipinos who are not in the Philippines that
33 (Emphasis supplied) the Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.
Thus, the Constitutional Commission recognized the fact that while
millions of Filipinos reside abroad principally for economic reasons and The discussion of the Constitutional Commission on the effect of the
hence they contribute in no small measure to the economic uplift of residency requirement prescribed by Section 1, Article V of the
this country, their voices are marginal insofar as the choice of this Constitution on the proposed system of absentee voting for qualified
countrys leaders is concerned. Filipinos abroad is enlightening:

14

MR. SUAREZ : May I just be recognized for a clarification. There are MR. TINGSON. That is right. So does the Committee accept?
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of THE PRESIDENT. Does the Committee accept the amendment?
the exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
MR. REGALADO. Madam President.

THE PRESIDENT. Would Commissioner Monsod care to answer?


THE PRESIDENT. Commissioner Regalado is recognized.

MR. MONSOD. I believe the answer was already given by


MR. REGALADO. When Commissioner Bengzon asked me to read my
Commissioner Bernas, that the domicile requirements as well as the
proposed amendment, I specifically stated that the National Assembly
qualifications and disqualifications would be the same.
shall prescribe a system which will enable qualified citizens,
temporarily absent from the Philippines, to vote. According to
THE PRESIDENT. Are we leaving it to the legislature to devise the Commissioner Monsod, the use of the phrase absentee voting already
system? took that into account as its meaning. That is referring to qualified
Filipino citizens temporarily abroad.
FR. BERNAS. I think there is a very legitimate problem raised there.
MR. MONSOD. Yes, we accepted that. I would like to say that with
THE PRESIDENT. Yes. respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is. If it is, say, members of
MR. BENGZON. I believe Commissioner Suarez is clarified. the diplomatic corps who may be continuously abroad for a long
time, perhaps, there can be a system of registration in the embassies.
FR. BERNAS. But I think it should be further clarified with regard to the However, we do not like to preempt the legislative assembly.
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is
of Naga or domiciled therein, but he satisfies the requirement of only to provide a system.
residence in Manila, so he is able to vote in Manila.
MR. MONSOD. Yes.
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word Filipinos to QUALIFIED FILIPINO THE PRESIDENT. The Commissioner is not stating here that he wants new
VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be qualifications for these absentee voters.
QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement? MR. MONSOD. That is right. They must have the qualifications and
none of the disqualifications.
THE PRESIDENT. What does Commissioner Monsod say?
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. Madam President, I think I would accept the phrase
QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
he has the qualifications and none of the disqualifications to vote.

15

Clearly therefrom, the intent of the Constitutional Commission is to MR. SUAREZ. I thank the Commissioner for his further clarification.
entrust to Congress the responsibility of devising a system of absentee Precisely, we need this clarification on record.
voting. The qualifications of voters as stated in Section 1 shall remain
except for the residency requirement. This is in fact the reason why the MR. MONSOD. Madam President, to clarify what we mean by
Constitutional Commission opted for the term qualified Filipinos temporarily abroad, it need not be on very short trips. One can be
abroad with respect to the system of absentee voting that Congress abroad on a treaty traders visa. Therefore, when we talk about
should draw up. As stressed by Commissioner Monsod, by the use of registration, it is possible that his residence is in Angeles and he would
the adjective qualified with respect to Filipinos abroad, the be able to vote for the candidates in Angeles, but Congress or the
assumption is that they have the qualifications and none of the Assembly may provide the procedure for registration, like listing ones
disqualifications to vote. In fine-tuning the provision on absentee name, in a registry list in the embassy abroad. That is still possible
voting, the Constitutional Commission discussed how the system under the system.
should work:
FR. BERNAS. Madam President, just one clarification if Commissioner
MR. SUAREZ. For clarification purposes, we just want to state for the Monsod agrees with this.
record that in the case of qualified Filipino citizens residing abroad
and exercising their right of suffrage, they can cast their votes for the Suppose we have a situation of a child of a diplomatic officer who
candidates in the place where they were registered to vote in the reaches the voting age while living abroad and he has never
Philippines. So as to avoid any complications, for example, if they are registered here. Where will he register? Will he be a registered voter of
registered in Angeles City, they could not vote for a mayor in Naga a certain locality in the Philippines?
City.
MR. MONSOD. Yes, it is possible that the system will enable that child
In other words, if that qualified voter is registered in Angeles City, then to comply with the registration requirements in an embassy in the
he can vote only for the local and national candidates in Angeles United States and his name is then entered in the official registration
City. I just want to make that clear for the record. book in Angeles City, for instance.

MR. REGALADO. Madam President. FR. BERNAS. In other words, he is not a registered voter of Los Angeles,
but a registered voter of a locality here.
THE PRESIDENT. What does Commissioner Regalado say?
MR. MONSOD. That is right. He does not have to come home to the
MR. REGALADO. I just want to make a note on the statement of Philippines to comply with the registration procedure here.
Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily FR. BERNAS. So, he does not have to come home.
abroad. He may not be actually residing abroad; he may just be there
on a business trip. It just so happens that the day before the elections
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if
he has to fly to the United States, so he could not cast his vote. He is
there are more clarifications needed from the body.
temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos temporarily
Also, the Floor Leader is happy to announce that there are no more
residing abroad. But as long as he is temporarily abroad on the date of
registered Commissioners to propose amendments. So I move that we
the elections, then he can fall within the prescription of Congress in
close the period of amendments.
that situation.
36 (Emphasis supplied)
16

It is clear from these discussions of the members of the Constitutional whether this committee amendment which in fact does not alter the
Commission that they intended to enfranchise as much as original text of the bill will have any effect on this?
possible all Filipino citizens abroad who have not abandoned their
domicile of origin. The Commission even intended to extend to young Senator Angara. Good question, Mr. President. And this has been
Filipinos who reach voting age abroad whose parents domicile of asked in various fora. This is in compliance with the Constitution. One,
origin is in the Philippines, and consider them qualified as voters for the the interpretation here of residence is synonymous with domicile.
first time.
As the gentleman and I know, Mr. President, domicile is the intent to
It is in pursuance of that intention that the Commission provided for return to ones home. And the fact that a Filipino may have been
Section 2 immediately after the residency requirement of Section 1. By physically absent from the Philippines and may be physically a
the doctrine of necessary implication in statutory construction, which resident of the United States, for example, but has a clear intent to
may be applied in construing constitutional provisions,37 the strategic return to the Philippines, will make him qualified as a resident of the
location of Section 2 indicates that the Constitutional Commission Philippines under this law.
provided for an exception to the actual residency requirement of
Section 1 with respect to qualified Filipinos abroad. The same This is consistent, Mr. President, with the constitutional mandate that
Commission has in effect declared that qualified Filipinos who are not we that Congress must provide a franchise to overseas Filipinos.
in the Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of the
If we read the Constitution and the suffrage principle literally as
Constitution.
demanding physical presence, then there is no way we can provide
for offshore voting to our offshore kababayan, Mr. President.
That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in
Senator Arroyo. Mr. President, when the Constitution says, in Section 2
fact the subject of debate when Senate Bill No. 2104, which became
of Article V, it reads: The Congress shall provide a system for securing
R.A. No. 9189, was deliberated upon on the Senate floor, thus:
the secrecy and sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad.
Senator Arroyo. Mr. President, this bill should be looked into in relation
to the constitutional provisions. I think the sponsor and I would agree
The key to this whole exercise, Mr. President, is qualified. In other
that the Constitution is supreme in any statute that we may enact.
words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. Absent the qualification, they cannot vote. And residents (sic) is a
It says: qualification.

Section 1. Suffrage may be exercised by all citizens of the Philippines I will lose votes here from permanent residents so-called green-card
not otherwise disqualified by law, who are at least eighteen years of holders, but the Constitution is the Constitution. We cannot
age, and who shall have resided in the Philippines for at least one year compromise on this. The Senate cannot be a party to something that
and in the place wherein they propose to vote for at least six months would affect or impair the Constitution.
immediately preceding the election.
Look at what the Constitution says In the place wherein they propose
Now, Mr. President, the Constitution says, who shall have resided in the to vote for at least six months immediately preceding the election.
Philippines. They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
Mr. President, all of us here have run (sic) for office.
17

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. which does not require physical residency in the Philippines; and
We are separated only by a creek. But one who votes in Makati Section 5 of the assailed law which enumerates those who are
cannot vote in Pateros unless he resides in Pateros for six months. That disqualified, to wit:
is how restrictive our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution. SEC. 5. Disqualifications. The following shall be disqualified from voting
under this Act:
As I have said, if a voter in Makati would want to vote in Pateros, yes,
he may do so. But he must do so, make the transfer six months before a) Those who have lost their Filipino citizenship in accordance with
the election, otherwise, he is not qualified to vote. Philippine laws;

That is why I am raising this point because I think we have a b) Those who have expressly renounced their Philippine citizenship
fundamental difference here. and who have pledged allegiance to a foreign country;

Senator Angara. It is a good point to raise, Mr. President. But it is a c) Those who have committed and are convicted in a final judgment
point already well-debated even in the constitutional commission of by a court or tribunal of an offense punishable by imprisonment of not
1986. And the reason Section 2 of Article V was placed immediately less than one (1) year, including those who have committed and been
after the six-month/one-year residency requirement is to demonstrate found guilty of Disloyalty as defined under Article 137 of the Revised
unmistakably that Section 2 which authorizes absentee voting is an Penal Code, such disability not having been removed by plenary
exception to the six-month/one-year residency requirement. That is pardon or amnesty: Provided, however, That any person disqualified
the first principle, Mr. President, that one must remember. to vote under this subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service of
The second reason, Mr. President, is that under our jurisprudence and I sentence; Provided, further, That the Commission may take
think this is so well-entrenched that one need not argue about cognizance of final judgments issued by foreign courts or tribunals only
it residency has been interpreted as synonymous with domicile. on the basis of reciprocity and subject to the formalities and processes
prescribed by the Rules of Court on execution of judgments;
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally d) An immigrant or a permanent resident who is recognized as such in
impossible to give a franchise to vote to overseas Filipinos who do not the host country, unless he/she executes, upon registration, an
physically live in the country, which is quite ridiculous because that is affidavit prepared for the purpose by the Commission declaring that
exactly the whole point of this exercise to enfranchise them and he/she shall resume actual physical permanent residence in the
empower them to vote. Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she
38 (Emphasis supplied) has not applied for citizenship in another country. Failure to return shall
be cause for the removal of the name of the immigrant or permanent
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of resident from the National Registry of Absentee Voters and his/her
the absentee voting process, to wit: permanent disqualification to vote in absentia.

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not e) Any citizen of the Philippines abroad previously declared insane or
otherwise disqualified by law, at least eighteen (18) years of age on incompetent by competent authority in the Philippines or abroad, as
the day of elections, may vote for president, vice-president, senators verified by the Philippine embassies, consulates or foreign service
and party-list representatives. establishments concerned, unless such competent authority

18

subsequently certifies that such person is no longer insane or It states that: For Filipino immigrants and those who have acquired
incompetent. permanent resident status abroad, a requirement for the registration is
the submission of a Sworn Declaration of Intent to Return duly sworn
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically before any Philippine embassy or consulate official authorized to
disqualifies an immigrant or permanent resident who is recognized as administer oath
such in the host country because immigration or permanent residence
in another country implies renunciation of ones residence in his Mr. President, may we know the rationale of this provision? Is the
country of origin. However, same Section allows an immigrant and purpose of this Sworn Declaration to include only those who have the
permanent resident abroad to register as voter for as long as he/she intention of returning to be qualified to exercise the right of suffrage?
executes an affidavit to show that he/she has not abandoned his What if the Filipino immigrant has no purpose of returning? Is he
domicile in pursuance of the constitutional intent expressed in Sections automatically disbarred from exercising this right to suffrage?
1 and 2 of Article V that all citizens of the Philippines not otherwise
disqualified by law must be entitled to exercise the right of suffrage Senator Angara. The rationale for this, Mr. President, is that we want to
and, that Congress must establish a system for absentee voting; for be expansive and all-inclusive in this law. That as long as he is a
otherwise, if actual, physical residence in the Philippines is required, Filipino, no matter whether he is a green-card holder in the U.S. or not,
there is no sense for the framers of the Constitution to mandate he will be authorized to vote. But if he is already a green-card holder,
Congress to establish a system for absentee voting. that means he has acquired permanent residency in the United States,
then he must indicate an intention to return. This is what makes for the
Contrary to the claim of petitioner, the execution of the affidavit itself definition of domicile. And to acquire the vote, we thought that we
is not the enabling or enfranchising act. The affidavit required in would require the immigrants and the green-card holders . . . Mr.
Section 5(d) is not only proof of the intention of the immigrant or President, the three administration senators are leaving, maybe we
permanent resident to go back and resume residency in the may ask for a vote [Laughter].
Philippines, but more significantly, it serves as an explicit expression
that he had not in fact abandoned his domicile of origin. Thus, it is not Senator Villar. For a merienda, Mr. President.
correct to say that the execution of the affidavit under Section 5(d)
violates the Constitution that proscribes provisional registration or a Senator Angara. Mr. President, going back to the business at hand.
promise by a voter to perform a condition to be qualified to vote in a The rationale for the requirement that an immigrant or a green-card
political exercise. holder should file an affidavit that he will go back to the Philippines is
that, if he is already an immigrant or a green-card holder, that means
To repeat, the affidavit is required of immigrants and permanent he may not return to the country any more and that contradicts the
residents abroad because by their status in their host countries, they definition of domicile under the law.
are presumed to have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of abandonment of But what we are trying to do here, Mr. President, is really provide the
Philippine domicile shall remain. choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide No, I think we are risking our
Further perusal of the transcripts of the Senate proceedings discloses permanent status in the United States if we file an affidavit that we
another reason why the Senate required the execution of said want to go back. But we want to give him the opportunity to make
affidavit. It wanted the affiant to exercise the option to return or to that decision. We do not want to make that decision for
express his intention to return to his domicile of origin and not to him. 39 (Emphasis supplied)
preempt that choice by legislation. Thus:

Senator Villar. Yes, we are going back.


19

The jurisprudential declaration in Caasi vs. Court of Appeals that green other foreign service establishment shall transmit to the Commission
card holders are disqualified to run for any elective office finds no the said application to vote within five (5) days from receipt thereof.
application to the present case because the Caasi case did not, for The application form shall be accomplished in triplicate and
obvious reasons, consider the absentee voting rights of Filipinos who submitted together with the photocopy of his/her overseas absentee
are immigrants and permanent residents in their host countries. voter certificate of registration.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 11.2. Every application to vote in absentia may be done personally at,
9189, they may still be considered as a qualified citizen of the or by mail to, the embassy, consulate or foreign service establishment,
Philippines abroad upon fulfillment of the requirements of registration which has jurisdiction over the country where he/she has indicated
under the new law for the purpose of exercising their right of suffrage. his/her address for purposes of the elections.

It must be emphasized that Section 5(d) does not only require an 11.3. Consular and diplomatic services rendered in connection with
affidavit or a promise to resume actual physical permanent residence the overseas absentee voting processes shall be made available at
in the Philippines not later than three years from approval of his/her no cost to the overseas absentee voter.
registration, the Filipinos abroad must also declare that they have not
applied for citizenship in another country. Thus, they must return to the Contrary to petitioners claim that Section 5(d) circumvents the
Philippines; otherwise, their failure to return shall be cause for the Constitution, Congress enacted the law prescribing a system of
removal of their names from the National Registry of Absentee Voters overseas absentee voting in compliance with the constitutional
and his/her permanent disqualification to vote in absentia. mandate. Such mandate expressly requires that Congress provide a
system of absentee voting that necessarily presupposes that the
Thus, Congress crafted a process of registration by which a Filipino qualified citizen of the Philippines abroad is not physically present in
voter permanently residing abroad who is at least eighteen years old, the country. The provisions of Sections 5(d) and 11 are components of
not otherwise disqualified by law, who has not relinquished Philippine the system of overseas absentee voting established by R.A. No. 9189.
citizenship and who has not actually abandoned his/her intentions to The qualified Filipino abroad who executed the affidavit is deemed to
return to his/her domicile of origin, the Philippines, is allowed to register have retained his domicile in the Philippines. He is presumed not to
and vote in the Philippine embassy, consulate or other foreign service have lost his domicile by his physical absence from this country. His
establishments of the place which has jurisdiction over the country having become an immigrant or permanent resident of his host
where he/she has indicated his/her address for purposes of the country does not necessarily imply an abandonment of his intention to
elections, while providing for safeguards to a clean election. return to his domicile of origin, the Philippines. Therefore, under the
law, he must be given the opportunity to express that he has not
Thus, Section 11 of R.A. No. 9189 provides: actually abandoned his domicile in the Philippines by executing the
affidavit required by Sections 5(d) and 8(c) of the law.
SEC. 11. Procedure for Application to Vote in Absentia.
Petitioners speculative apprehension that the implementation of
11.1. Every qualified citizen of the Philippines abroad whose Section 5(d) would affect the credibility of the elections is insignificant
application for registration has been approved, including those as what is important is to ensure that all those who possess the
previously registered under Republic Act No. 8189, shall, in every qualifications to vote on the date of the election are given the
national election, file with the officer of the embassy, consulate or opportunity and permitted to freely do so. The COMELEC and the
other foreign service establishment authorized by the Commission, a Department of Foreign Affairs have enough resources and talents to
sworn written application to vote in a form prescribed by the ensure the integrity and credibility of any election conducted
Commission. The authorized officer of such embassy, consulate or pursuant to R.A. No. 9189.

20

As to the eventuality that the Filipino abroad would renege on his B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same
undertaking to return to the Philippines, the penalty of perpetual Act in contravention of Section 4, Article VII of the Constitution?
disenfranchisement provided for by Section 5(d) would suffice to serve
as deterrence to non-compliance with his/her undertaking under the Section 4 of R.A. No. 9189 provides that the overseas absentee voter
affidavit. may vote for president, vice-president, senators and party-list
representatives.
Petitioner argues that should a sizable number of immigrants renege
on their promise to return, the result of the elections would be affected Section 18.5 of the same Act provides:
and could even be a ground to contest the proclamation of the
winning candidates and cause further confusion and doubt on the SEC. 18. On-Site Counting and Canvassing.
integrity of the results of the election. Indeed, the probability that after
an immigrant has exercised the right to vote, he shall opt to remain in
.........
his host country beyond the third year from the execution of the
affidavit, is not farfetched. However, it is not for this Court to determine
18. 5 The canvass of votes shall not cause the delay of the
the wisdom of a legislative exercise. As expressed in Taada vs.
proclamation of a winning candidate if the outcome of the election
Tuvera,40 the Court is not called upon to rule on the wisdom of the law
will not be affected by the results thereof. Notwithstanding the
or to repeal it or modify it if we find it impractical.
foregoing, the Commission is empowered to order the proclamation of
winning candidates despite the fact that the scheduled election has
Congress itself was conscious of said probability and in fact, it has
not taken place in a particular country or countries, if the holding of
addressed the expected problem. Section 5(d) itself provides for a
elections therein has been rendered impossible by events, factors and
deterrence which is that the Filipino who fails to return as promised
circumstances peculiar to such country or countries, in which events,
stands to lose his right of suffrage. Under Section 9, should a registered
factors and circumstances are beyond the control or influence of the
overseas absentee voter fail to vote for two consecutive national
Commission. (Emphasis supplied)
elections, his name may be ordered removed from the National
Registry of Overseas Absentee Voters.
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
empowering the COMELEC to order the proclamation of winning
Other serious legal questions that may be raised would be: what
candidates insofar as it affects the canvass of votes and proclamation
happens to the votes cast by the qualified voters abroad who were
of winning candidates for president and vice-president, is
not able to return within three years as promised? What is the effect
unconstitutional because it violates the following provisions of
on the votes cast by the non-returnees in favor of the winning
paragraph 4, Section 4 of Article VII of the Constitution:
candidates? The votes cast by qualified Filipinos abroad who failed to
return within three years shall not be invalidated because they were
SEC. 4 . . .
qualified to vote on the date of the elections, but their failure to return
shall be cause for the removal of the names of the immigrants or
permanent residents from the National Registry of Absentee Voters The returns of every election for President and Vice-President, duly
and their permanent disqualification to vote in absentia. certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the
In fine, considering the underlying intent of the Constitution, the Court
Senate shall, not later than thirty days after the day of the election,
does not find Section 5(d) of R.A. No. 9189 as constitutionally
open all the certificates in the presence of the Senate and the House
defective.
of Representatives in joint public session, and the Congress, upon

21

determination of the authenticity and due execution thereof in the safe and reliable the Certificates of Canvass and the Statements of
manner provided by law, canvass the votes. Votes to the Commission, . . . [Emphasis supplied]

The person having the highest number of votes shall be proclaimed clashes with paragraph 4, Section 4, Article VII of the Constitution
elected, but in case two or more shall have an equal and highest which provides that the returns of every election for President and
number of votes, one of them shall forthwith be chosen by the vote of Vice-President shall be certified by the board of canvassers to
a majority of all the Members of both Houses of the Congress, voting Congress.
separately.
Congress could not have allowed the COMELEC to usurp a power
The Congress shall promulgate its rules for the canvassing of the that constitutionally belongs to it or, as aptly stated by petitioner, to
certificates. encroach on the power of Congress to canvass the votes for president
and vice-president and the power to proclaim the winners for the said
... positions. The provisions of the Constitution as the fundamental law of
the land should be read as part of The Overseas Absentee Voting Act
which gives to Congress the duty to canvass the votes and proclaim of 2003 and hence, the canvassing of the votes and the proclamation
the winning candidates for president and vice-president. of the winning candidates for president and vice-president for the
entire nation must remain in the hands of Congress.
The Solicitor General asserts that this provision must be harmonized
with paragraph 4, Section 4, Article VII of the Constitution and should C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1,
be taken to mean that COMELEC can only proclaim the winning Article IX-A of the Constitution?
Senators and party-list representatives but not the President and Vice-
President.41cräläwvirtualibräry Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article
IX-A (Common Provisions) of the Constitution, to wit:
Respondent COMELEC has no comment on the matter.
Section 1. The Constitutional Commissions, which shall
Indeed, the phrase, proclamation of winning candidates, in Section be independent, are the Civil Service Commission, the Commission on
18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the Elections, and the Commission on Audit. (Emphasis supplied)
proclamation of the winning candidates for the presidency and the
vice-presidency. He submits that the creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend and approve the
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Implementing Rules and Regulations promulgated by the COMELEC,
Article VII of the Constitution only insofar as said Section totally R.A. No. 9189 intrudes into the independence of the COMELEC which,
disregarded the authority given to Congress by the Constitution to as a constitutional body, is not under the control of either the
proclaim the winning candidates for the positions of president and executive or legislative departments of government; that only the
vice-president. COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that
should the rules promulgated by the COMELEC violate any law, it is
In addition, the Court notes that Section 18.4 of the law, to wit:
the Court that has the power to review the same via the petition of
any interested party, including the legislators.
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission equally
22

It is only on this question that respondent COMELEC submitted its is likewise unconstitutional as it violates Section 1, Article IX-A
Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. mandating the independence of constitutional commissions.
No. 9189 are unconstitutional. Like the petitioner, respondent
COMELEC anchors its claim of unconstitutionality of said Sections upon The Solicitor General takes exception to his prefatory statement that
Section 1, Article IX-A of the Constitution providing for the the constitutional challenge must fail and agrees with the petitioner
independence of the constitutional commissions such as the that Sections 19 and 25 are invalid and unconstitutional on the ground
COMELEC. It asserts that its power to formulate rules and regulations that there is nothing in Article VI of the Constitution on Legislative
has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held Department that would as much as imply that Congress has
that the power of the COMELEC to formulate rules and regulations is concurrent power to enforce and administer election laws with the
implicit in its power to implement regulations under Section 2(1) of COMELEC; and by the principles of exclusio unius est exclusio
Article IX-C43 of the Constitution. COMELEC joins the petitioner in alterius and expressum facit cessare tacitum, the constitutionally
asserting that as an independent constitutional body, it may not be enumerated powers of Congress circumscribe its authority to the
subject to interference by any government instrumentality and that exclusion of all others.
only this Court may review COMELEC rules and only in cases of grave
abuse of discretion. The parties are unanimous in claiming that Sections 19, 25 and portions
of Section 17.1 are unconstitutional. Thus, there is no actual issue
The COMELEC adds, however, that another provision, vis--vis its rule- forged on this question raised by petitioner.
making power, to wit:
However, the Court finds it expedient to expound on the role of
SEC. 17. Voting by Mail. Congress through the Joint Congressional Oversight Committee
(JCOC) vis--vis the independence of the COMELEC, as a constitutional
17.1. For the May, 2004 elections, the Commission shall authorize body.
voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by mail R.A. No. 9189 created the JCOC, as follows:
may be allowed in countries that satisfy the following conditions:
SEC. 25. Joint Congressional Oversight Committee. A Joint
a) Where the mailing system is fairly well-developed and secure to Congressional Oversight Committee is hereby created, composed of
prevent occasion for fraud; the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other
b) Where there exists a technically established identification system Senators designated by the Senate President, and the Chairman of
that would preclude multiple or proxy voting; and the House Committee on Suffrage and Electoral Reforms, and seven
(7) other Members of the House of Representatives designated by the
c) Where the system of reception and custody of mailed ballots in the Speaker of the House of Representatives: Provided, That, of the seven
embassies, consulates and other foreign service establishments (7) members to be designated by each House of Congress, four (4)
concerned are adequate and well-secured. should come from the majority and the remaining three (3) from the
minority.
Thereafter, voting by mail in any country shall be allowed only upon
review and approval of the Joint Congressional Oversight Committee. The Joint Congressional Oversight Committee shall have the power to
monitor and evaluate the implementation of this Act. It shall review,
. . . . . . . . . (Emphasis supplied) revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission. (Emphasis supplied)

23

SEC. 19. Authority of the Commission to Promulgate Rules. The organization. The Commission may err, so may this court also. It should
Commission shall issue the necessary rules and regulations to be allowed considerable latitude in devising means and methods that
effectively implement the provisions of this Act within sixty (60) days will insure the accomplishment of the great objective for which it was
from the effectivity of this Act. The Implementing Rules and created free, orderly and honest elections. We may not agree fully
Regulations shall be submitted to the Joint Congressional Oversight with its choice of means, but unless these are clearly illegal or
Committee created by virtue of this Act for prior approval. constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with
. . . . . . . . . (Emphasis supplied) realistically not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political
Composed of Senators and Members of the House of Representatives, strategists, and its knowledge derived from actual experience in
the Joint Congressional Oversight Committee (JCOC) is a purely dealing with political controversies, is in a peculiarly advantageous
legislative body. There is no question that the authority of Congress to position to decide complex political questions.
monitor and evaluate the implementation of R.A. No. 9189 is geared
towards possible amendments or revision of the law itself and thus, 45 (Emphasis supplied)
may be performed in aid of its legislation.
The Court has no general powers of supervision over COMELEC which
However, aside from its monitoring and evaluation functions, R.A. No. is an independent body except those specifically granted by the
9189 gives to the JCOC the following functions: (a) to review, revise, Constitution, that is, to review its decisions, orders and rulings.46 In the
amend and approve the Implementing Rules and Regulations (IRR) same vein, it is not correct to hold that because of its recognized
promulgated by the COMELEC [Sections 25 and 19]; and (b) subject extensive legislative power to enact election laws, Congress may
to the approval of the JCOC [Section 17.1], the voting by mail in not intrude into the independence of the COMELEC by exercising
more than three countries for the May 2004 elections and in any supervisory powers over its rule-making authority.
country determined by COMELEC.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
The ambit of legislative power under Article VI of the Constitution is COMELEC to issue the necessary rules and regulations to effectively
circumscribed by other constitutional provisions. One such provision is implement the provisions of this Act within sixty days from the
Section 1 of Article IX-A of the 1987 Constitution ordaining that effectivity of this Act. This provision of law follows the usual procedure
constitutional commissions such as the COMELEC shall be in drafting rules and regulations to implement a law the legislature
independent. grants an administrative agency the authority to craft the rules and
regulations implementing the law it has enacted, in recognition of the
Interpreting Section 1, Article X of the 1935 Constitution providing that administrative expertise of that agency in its particular field of
there shall be an independent COMELEC, the Court has held that operation.47 Once a law is enacted and approved, the legislative
[w]hatever may be the nature of the functions of the Commission on function is deemed accomplished and complete. The legislative
Elections, the fact is that the framers of the Constitution wanted it to function may spring back to Congress relative to the same law only if
be independent from the other departments of the Government.44 In that body deems it proper to review, amend and revise the law, but
an earlier case, the Court elucidated: certainly not to approve, review, revise and amend the IRR of the
COMELEC.
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the By vesting itself with the powers to approve, review, amend, and
discharge of its functions, it should not be hampered with restrictions revise the IRR for The Overseas Absentee Voting Act of 2003, Congress
that would be fully warranted in the case of a less responsible went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the
24

COMELEC. Under such a situation, the Court is left with no option but a) The phrase in the first sentence of the first paragraph of Section
to withdraw from its usual reticence in declaring a provision of law 17.1, to wit: subject to the approval of the Joint Congressional
unconstitutional. Oversight Committee;

The second sentence of the first paragraph of Section 19 stating that b) The portion of the last paragraph of Section 17.1, to wit: only upon
[t]he Implementing Rules and Regulations shall be submitted to the review and approval of the Joint Congressional Oversight Committee;
Joint Congressional Oversight Committee created by virtue of this Act
for prior approval, and the second sentence of the second paragraph c) The second sentence of the first paragraph of Section 19, to wit: The
of Section 25 stating that [i]t shall review, revise, amend and approve Implementing Rules and Regulations shall be submitted to the Joint
the Implementing Rules and Regulations promulgated by the Congressional Oversight Committee created by virtue of this Act for
Commission, whereby Congress, in both provisions, arrogates unto prior approval; and
itself a function not specifically vested by the Constitution, should be
stricken out of the subject statute for constitutional infirmity. Both d) The second sentence in the second paragraph of Section 25, to
provisions brazenly violate the mandate on the independence of the wit: It shall review, revise, amend and approve the Implementing Rules
COMELEC. and Regulations promulgated by the Commission of the same law;

Similarly, the phrase, subject to the approval of the Congressional for being repugnant to Section 1, Article IX-A of the Constitution
Oversight Committee in the first sentence of Section 17.1 which mandating the independence of constitutional commission, such as
empowers the Commission to authorize voting by mail in not more COMELEC.
than three countries for the May, 2004 elections; and the phrase, only
upon review and approval of the Joint Congressional Oversight
The constitutionality of Section 18.5 of R.A. No. 9189
Committee found in the second paragraph of the same section are
is UPHELD withrespect only to the authority given to the COMELEC to
unconstitutional as they require review and approval of voting by mail
proclaim the winning candidates for the Senators and party-list
in any country after the 2004 elections. Congress may not confer upon
representatives but not as to the power to canvass the votes and
itself the authority to approve or disapprove the countries wherein
proclaim the winning candidates for President and Vice-President
voting by mail shall be allowed, as determined by the COMELEC
which is lodged with Congress under Section 4, Article VII of the
pursuant to the conditions provided for in Section 17.1 of R.A. No.
Constitution.
9189.48 Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the
The constitutionality of Section 5(d) is UPHELD.
COMELEC.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said
During the deliberations, all the members of the Court agreed to
law continues to be in full force and effect.
adopt the separate opinion of Justice Reynato S. Puno as part of the
ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given SO ORDERED.
to the Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of


R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL:

25

LEGISLATIVE INTERFERENCE Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners,
G.R. No. 166715 August 14, 2008 two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS organization.6
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO,
RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, Each Board has the duty to (1) prescribe the rules and guidelines for
vs. the allocation, distribution and release of the Fund; (2) set criteria and
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, procedures for removing from the service officials and employees
HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of whose revenue collection falls short of the target; (3) terminate
the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his personnel in accordance with the criteria adopted by the Board; (4)
Capacity as Commissioner of Bureau of Customs, respondents. prescribe a system for performance evaluation; (5) perform other
functions, including the issuance of rules and regulations and (6)
DECISION submit an annual report to Congress.7

CORONA, J.: The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules
and regulations of RA 9335,8 to be approved by a Joint Congressional
This petition for prohibition1 seeks to prevent respondents from
Oversight Committee created for such purpose.9
implementing and enforcing Republic Act (RA) 93352(Attrition Act of
2005).
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform legislation.
RA 9335 was enacted to optimize the revenue-generation capability
They contend that, by establishing a system of rewards and incentives,
and collection of the Bureau of Internal Revenue (BIR) and the Bureau
the law "transform[s] the officials and employees of the BIR and the
of Customs (BOC). The law intends to encourage BIR and BOC officials
BOC into mercenaries and bounty hunters" as they will do their best
and employees to exceed their revenue targets by providing a system
only in consideration of such rewards. Thus, the system of rewards and
of rewards and sanctions through the creation of a Rewards and
incentives invites corruption and undermines the constitutionally
Incentives Fund (Fund) and a Revenue Performance Evaluation Board
mandated duty of these officials and employees to serve the people
(Board).3 It covers all officials and employees of the BIR and the BOC
with utmost responsibility, integrity, loyalty and efficiency.
with at least six months of service, regardless of employment status.4

Petitioners also claim that limiting the scope of the system of rewards
The Fund is sourced from the collection of the BIR and the BOC in
and incentives only to officials and employees of the BIR and the BOC
excess of their revenue targets for the year, as determined by the
violates the constitutional guarantee of equal protection. There is no
Development Budget and Coordinating Committee (DBCC). Any
valid basis for classification or distinction as to why such a system
incentive or reward is taken from the fund and allocated to the BIR
should not apply to officials and employees of all other government
and the BOC in proportion to their contribution in the excess collection
agencies.
of the targeted amount of tax revenue.5

In addition, petitioners assert that the law unduly delegates the power
The Boards in the BIR and the BOC are composed of the Secretary of
to fix revenue targets to the President as it lacks a sufficient standard
the Department of Finance (DOF) or his/her Undersecretary, the
on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR
Secretary of the Department of Budget and Management (DBM) or
and BOC officials may be dismissed from the service if their revenue
his/her Undersecretary, the Director General of the National Economic
collections fall short of the target by at least 7.5%, the law does not,
26

however, fix the revenue targets to be achieved. Instead, the fixing of question must be ripe for adjudication. And a constitutional question is
revenue targets has been delegated to the President without ripe for adjudication when the governmental act being challenged
sufficient standards. It will therefore be easy for the President to fix an has a direct adverse effect on the individual challenging it.11 Thus, to
unrealistic and unattainable target in order to dismiss BIR or BOC be ripe for judicial adjudication, the petitioner must show a personal
personnel. stake in the outcome of the case or an injury to himself that can be
redressed by a favorable decision of the Court.12
Finally, petitioners assail the creation of a congressional oversight
committee on the ground that it violates the doctrine of separation of In this case, aside from the general claim that the dispute has ripened
powers. While the legislative function is deemed accomplished and into a judicial controversy by the mere enactment of the law even
completed upon the enactment and approval of the law, the without any further overt act,13 petitioners fail either to assert any
creation of the congressional oversight committee permits legislative specific and concrete legal claim or to demonstrate any direct
participation in the implementation and enforcement of the law. adverse effect of the law on them. They are unable to show a
personal stake in the outcome of this case or an injury to themselves.
In their comment, respondents, through the Office of the Solicitor On this account, their petition is procedurally infirm.
General, question the petition for being premature as there is no
actual case or controversy yet. Petitioners have not asserted any right This notwithstanding, public interest requires the resolution of the
or claim that will necessitate the exercise of this Court’s jurisdiction. constitutional issues raised by petitioners. The grave nature of their
Nevertheless, respondents acknowledge that public policy requires allegations tends to cast a cloud on the presumption of
the resolution of the constitutional issues involved in this case. They constitutionality in favor of the law. And where an action of the
assert that the allegation that the reward system will breed legislative branch is alleged to have infringed the Constitution, it
mercenaries is mere speculation and does not suffice to invalidate the becomes not only the right but in fact the duty of the judiciary to settle
law. Seen in conjunction with the declared objective of RA 9335, the the dispute.14
law validly classifies the BIR and the BOC because the functions they
perform are distinct from those of the other government agencies and Accountability of
instrumentalities. Moreover, the law provides a sufficient standard that Public Officers
will guide the executive in the implementation of its provisions. Lastly,
the creation of the congressional oversight committee under the law Section 1, Article 11 of the Constitution states:
enhances, rather than violates, separation of powers. It ensures the
fulfillment of the legislative policy and serves as a check to any over-
Sec. 1. Public office is a public trust. Public officers and
accumulation of power on the part of the executive and the
employees must at all times be accountable to the people,
implementing agencies.
serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest
After a careful consideration of the conflicting contentions of the lives.
parties, the Court finds that petitioners have failed to overcome the
presumption of constitutionality in favor of RA 9335, except as shall
Public office is a public trust. It must be discharged by its holder not for
hereafter be discussed.
his own personal gain but for the benefit of the public for whom he
holds it in trust. By demanding accountability and service with
Actual Case And Ripeness responsibility, integrity, loyalty, efficiency, patriotism and justice, all
government officials and employees have the duty to be responsive
An actual case or controversy involves a conflict of legal rights, an to the needs of the people they are called upon to serve.
assertion of opposite legal claims susceptible of judicial
adjudication.10 A closely related requirement is ripeness, that is, the
27

Public officers enjoy the presumption of regularity in the performance The offer of a portion of such penalties to the collectors is to
of their duties. This presumption necessarily obtains in favor of BIR and stimulate and reward their zeal and industry in detecting
BOC officials and employees. RA 9335 operates on the basis thereof fraudulent attempts to evade payment of duties and taxes.
and reinforces it by providing a system of rewards and sanctions for
the purpose of encouraging the officials and employees of the BIR In the same vein, employees of the BIR and the BOC may by law be
and the BOC to exceed their revenue targets and optimize their entitled to a reward when, as a consequence of their zeal in the
revenue-generation capability and collection.15 enforcement of tax and customs laws, they exceed their revenue
targets. In addition, RA 9335 establishes safeguards to ensure that the
The presumption is disputable but proof to the contrary is required to reward will not be claimed if it will be either the fruit of "bounty hunting
rebut it. It cannot be overturned by mere conjecture or denied in or mercenary activity" or the product of the irregular performance of
advance (as petitioners would have the Court do) specially in this official duties. One of these precautionary measures is embodied in
case where it is an underlying principle to advance a declared public Section 8 of the law:
policy.
SEC. 8. Liability of Officials, Examiners and Employees of the BIR
Petitioners’ claim that the implementation of RA 9335 will turn BIR and and the BOC. – The officials, examiners, and employees of the
BOC officials and employees into "bounty hunters and mercenaries" is [BIR] and the [BOC] who violate this Act or who are guilty of
not only without any factual and legal basis; it is also purely negligence, abuses or acts of malfeasance or misfeasance or
speculative. fail to exercise extraordinary diligence in the performance of
their duties shall be held liable for any loss or injury suffered by
A law enacted by Congress enjoys the strong presumption of any business establishment or taxpayer as a result of such
constitutionality. To justify its nullification, there must be a clear and violation, negligence, abuse, malfeasance, misfeasance or
unequivocal breach of the Constitution, not a doubtful and equivocal failure to exercise extraordinary diligence.
one.16 To invalidate RA 9335 based on petitioners’ baseless supposition
is an affront to the wisdom not only of the legislature that passed it but Equal Protection
also of the executive which approved it.
Equality guaranteed under the equal protection clause is equality
Public service is its own reward. Nevertheless, public officers may by under the same conditions and among persons similarly situated; it is
law be rewarded for exemplary and exceptional performance. A equality among equals, not similarity of treatment of persons who are
system of incentives for exceeding the set expectations of a public classified based on substantial differences in relation to the object to
office is not anathema to the concept of public accountability. In be accomplished.19 When things or persons are different in fact or
fact, it recognizes and reinforces dedication to duty, industry, circumstance, they may be treated in law differently. In Victoriano v.
efficiency and loyalty to public service of deserving government Elizalde Rope Workers’ Union,20 this Court declared:
personnel.
The guaranty of equal protection of the laws is not a guaranty
In United States v.Matthews,17 the U.S. Supreme Court validated a law of equality in the application of the laws upon all citizens of the
which awards to officers of the customs as well as other parties an [S]tate. It is not, therefore, a requirement, in order to avoid the
amount not exceeding one-half of the net proceeds of forfeitures in constitutional prohibition against inequality, that every man,
violation of the laws against smuggling. Citing Dorsheimer v. United woman and child should be affected alike by a statute.
States,18 the U.S. Supreme Court said: Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons
according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution
28

does not require that things which are different in fact be generation capability and collection of the BIR and the BOC, the
treated in law as though they were the same. The equal incentives and/or sanctions provided in the law should logically
protection clause does not forbid discrimination as to things pertain to the said agencies. Moreover, the law concerns only the BIR
that are different. It does not prohibit legislation which is limited and the BOC because they have the common distinct primary
either in the object to which it is directed or by the territory function of generating revenues for the national government through
within which it is to operate. the collection of taxes, customs duties, fees and charges.

The equal protection of the laws clause of the Constitution The BIR performs the following functions:
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of Sec. 18. The Bureau of Internal Revenue. – The Bureau of
things in speculation or practice because they agree with one Internal Revenue, which shall be headed by and subject to the
another in certain particulars. A law is not invalid because of supervision and control of the Commissioner of Internal
simple inequality. The very idea of classification is that of Revenue, who shall be appointed by the President upon the
inequality, so that it goes without saying that the mere fact of recommendation of the Secretary [of the DOF], shall have the
inequality in no manner determines the matter of following functions:
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification (1) Assess and collect all taxes, fees and charges and account
should be based on substantial distinctions which make for real for all revenues collected;
differences, that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that it
(2) Exercise duly delegated police powers for the proper
must apply equally to each member of the class. This Court has
performance of its functions and duties;
held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational
(3) Prevent and prosecute tax evasions and all other illegal
basis and is not palpably arbitrary.
economic activities;
In the exercise of its power to make classifications for the
(4) Exercise supervision and control over its constituent and
purpose of enacting laws over matters within its jurisdiction, the
subordinate units; and
state is recognized as enjoying a wide range of discretion. It is
not necessary that the classification be based on scientific or
marked differences of things or in their relation. Neither is it (5) Perform such other functions as may be provided by law.24
necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases xxx xxx xxx (emphasis supplied)
properly rest on narrow distinctions, for the equal protection
guaranty does not preclude the legislature from recognizing On the other hand, the BOC has the following functions:
degrees of evil or harm, and legislation is addressed to evils as
they may appear.21 (emphasis supplied) Sec. 23. The Bureau of Customs. – The Bureau of Customs which
shall be headed and subject to the management and control
The equal protection clause recognizes a valid classification, that is, a of the Commissioner of Customs, who shall be appointed by
classification that has a reasonable foundation or rational basis and the President upon the recommendation of the Secretary[of
not arbitrary.22 With respect to RA 9335, its expressed public policy is the DOF] and hereinafter referred to as Commissioner, shall
the optimization of the revenue-generation capability and collection have the following functions:
of the BIR and the BOC.23 Since the subject of the law is the revenue-
29

(1) Collect custom duties, taxes and the corresponding fees, the delegation from running riot.27 To be sufficient, the standard must
charges and penalties; specify the limits of the delegate’s authority, announce the legislative
policy and identify the conditions under which it is to be
(2) Account for all customs revenues collected; implemented.28

(3) Exercise police authority for the enforcement of tariff and RA 9335 adequately states the policy and standards to guide the
customs laws; President in fixing revenue targets and the implementing agencies in
carrying out the provisions of the law. Section 2 spells out the policy of
(4) Prevent and suppress smuggling, pilferage and all other the law:
economic frauds within all ports of entry;
SEC. 2. Declaration of Policy. – It is the policy of the State to
(5) Supervise and control exports, imports, foreign mails and optimize the revenue-generation capability and collection of
the clearance of vessels and aircrafts in all ports of entry; the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC) by providing for a system of rewards and
sanctions through the creation of a Rewards and Incentives
(6) Administer all legal requirements that are appropriate;
Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials
(7) Prevent and prosecute smuggling and other illegal activities
and employees to exceed their revenue targets.
in all ports under its jurisdiction;
Section 4 "canalized within banks that keep it from overflowing"29 the
(8) Exercise supervision and control over its constituent units;
delegated power to the President to fix revenue targets:

(9) Perform such other functions as may be provided by law.25


SEC. 4. Rewards and Incentives Fund. – A Rewards and
Incentives Fund, hereinafter referred to as the Fund, is hereby
xxx xxx xxx (emphasis supplied) created, to be sourced from the collection of the BIR and the
BOC in excess of their respective revenue targets of the year,
Both the BIR and the BOC are bureaus under the DOF. They principally as determined by the Development Budget and Coordinating
perform the special function of being the instrumentalities through Committee (DBCC), in the following percentages:
which the State exercises one of its great inherent functions – taxation.
Indubitably, such substantial distinction is germane and intimately Excess of Collection of Percent (%) of the Excess
related to the purpose of the law. Hence, the classification and the Excess the Collection to Accrue to the
treatment accorded to the BIR and the BOC under RA 9335 fully satisfy Revenue Targets Fund
the demands of equal protection. 30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of
Undue Delegation the remaining excess

Two tests determine the validity of delegation of legislative power: (1) The Fund shall be deemed automatically appropriated the
the completeness test and (2) the sufficient standard test. A law is year immediately following the year when the revenue
complete when it sets forth therein the policy to be executed, carried collection target was exceeded and shall be released on the
out or implemented by the delegate.26 It lays down a sufficient same fiscal year.
standard when it provides adequate guidelines or limitations in the law
to map out the boundaries of the delegate’s authority and prevent
30

Revenue targets shall refer to the original estimated revenue no historical record of collection performance that can
collection expected of the BIR and the BOC for a given fiscal be used as basis for evaluation; and
year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The 2. Where the revenue or customs official or employee is
BIR and the BOC shall submit to the DBCC the distribution of a recent transferee in the middle of the period under
the agencies’ revenue targets as allocated among its revenue consideration unless the transfer was due to
districts in the case of the BIR, and the collection districts in the nonperformance of revenue targets or potential
case of the BOC. nonperformance of revenue targets: Provided,
however, That when the district or area of responsibility
xxx xxx xxx (emphasis supplied) covered by revenue or customs officials or employees
has suffered from economic difficulties brought about
Revenue targets are based on the original estimated revenue by natural calamities or force majeure or economic
collection expected respectively of the BIR and the BOC for a given causes as may be determined by the Board,
fiscal year as approved by the DBCC and stated in the BESF submitted termination shall be considered only after careful and
by the President to Congress.30 Thus, the determination of revenue proper review by the Board.
targets does not rest solely on the President as it also undergoes the
scrutiny of the DBCC. (c) To terminate personnel in accordance with the criteria
adopted in the preceding paragraph: Provided, That such
On the other hand, Section 7 specifies the limits of the Board’s decision shall be immediately executory: Provided, further,
authority and identifies the conditions under which officials and That the application of the criteria for the separation of an
employees whose revenue collection falls short of the target by at official or employee from service under this Act shall be
least 7.5% may be removed from the service: without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the
SEC. 7. Powers and Functions of the Board. – The Board in the Code of Conduct and Ethical Standards of Public Officers and
agency shall have the following powers and functions: Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx xxx xxx xxx (emphasis supplied)

(b) To set the criteria and procedures for removing from Clearly, RA 9335 in no way violates the security of tenure of officials
service officials and employees whose revenue collection falls and employees of the BIR and the BOC. The guarantee of security of
short of the target by at least seven and a half percent (7.5%), tenure only means that an employee cannot be dismissed from the
with due consideration of all relevant factors affecting the level service for causes other than those provided by law and only after
of collection as provided in the rules and regulations due process is accorded the employee.31 In the case of RA 9335, it
promulgated under this Act, subject to civil service laws, rules lays down a reasonable yardstick for removal (when the revenue
and regulations and compliance with substantive and collection falls short of the target by at least 7.5%) with due
procedural due process: Provided, That the following consideration of all relevant factors affecting the level of collection.
exemptions shall apply: This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under
civil service laws.32 The action for removal is also subject to civil service
1. Where the district or area of responsibility is newly-
laws, rules and regulations and compliance with substantive and
created, not exceeding two years in operation, as has
procedural due process.

31

At any rate, this Court has recognized the following as sufficient Broadly defined, the power of oversight embraces all activities
standards: "public interest," "justice and equity," "public convenience undertaken by Congress to enhance its understanding of and
and welfare" and "simplicity, economy and welfare."33 In this case, the influence over the implementation of legislation it has enacted.
declared policy of optimization of the revenue-generation capability Clearly, oversight concerns post-enactment measures
and collection of the BIR and the BOC is infused with public interest. undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether
Separation Of Powers agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of
Section 12 of RA 9335 provides: legislative authority, and (d) to assess executive conformity
with the congressional perception of public interest.
SEC. 12. Joint Congressional Oversight Committee. – There is
hereby created a Joint Congressional Oversight Committee The power of oversight has been held to be intrinsic in the
composed of seven Members from the Senate and seven grant of legislative power itself and integral to the checks and
Members from the House of Representatives. The Members balances inherent in a democratic system of government. x x x
from the Senate shall be appointed by the Senate President, xxxxxx
with at least two senators representing the minority. The
Members from the House of Representatives shall be Over the years, Congress has invoked its oversight power with
appointed by the Speaker with at least two members increased frequency to check the perceived "exponential
representing the minority. After the Oversight Committee will accumulation of power" by the executive branch. By the
have approved the implementing rules and regulations (IRR) it beginning of the 20th century, Congress has delegated an
shall thereafter become functus officio and therefore cease to enormous amount of legislative authority to the executive
exist. branch and the administrative agencies. Congress, thus, uses
its oversight power to make sure that the administrative
The Joint Congressional Oversight Committee in RA 9335 was created agencies perform their functions within the authority
for the purpose of approving the implementing rules and regulations delegated to them. x x x x x x x x x
(IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May
22, 2006, it approved the said IRR. From then on, it became functus Categories of congressional oversight functions
officio and ceased to exist. Hence, the issue of its alleged
encroachment on the executive function of implementing and The acts done by Congress purportedly in the exercise of its
enforcing the law may be considered moot and academic. oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
This notwithstanding, this might be as good a time as any for the Court
to confront the issue of the constitutionality of the Joint Congressional a. Scrutiny
Oversight Committee created under RA 9335 (or other similar laws for
that matter). Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations. Its
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the primary purpose is to determine economy and
concept of congressional oversight in Macalintal v. Commission on efficiency of the operation of government activities. In
Elections34 is illuminating: the exercise of legislative scrutiny, Congress may
request information and report from the other branches
Concept and bases of congressional oversight

32

of government. It can give recommendations or pass the statute provides that a proposed regulation will become
resolutions for consideration of the agency involved. law if Congress affirmatively approves it.

xxx xxx xxx Supporters of legislative veto stress that it is necessary to


maintain the balance of power between the legislative and
b. Congressional investigation the executive branches of government as it offers lawmakers a
way to delegate vast power to the executive branch or to
While congressional scrutiny is regarded as a passive independent agencies while retaining the option to cancel
process of looking at the facts that are readily particular exercise of such power without having to pass new
available, congressional investigation involves a more legislation or to repeal existing law. They contend that this
intense digging of facts. The power of Congress to arrangement promotes democratic accountability as it
conduct investigation is recognized by the 1987 provides legislative check on the activities of unelected
Constitution under section 21, Article VI, administrative agencies. One proponent thus explains:
xxx xxx xxx
It is too late to debate the merits of this delegation
c. Legislative supervision policy: the policy is too deeply embedded in our law
and practice. It suffices to say that the complexities of
modern government have often led Congress-whether
The third and most encompassing form by which Congress
by actual or perceived necessity- to legislate by
exercises its oversight power is thru legislative supervision.
declaring broad policy goals and general statutory
"Supervision" connotes a continuing and informed awareness
standards, leaving the choice of policy options to the
on the part of a congressional committee regarding executive
discretion of an executive officer. Congress articulates
operations in a given administrative area. While both
legislative aims, but leaves their implementation to the
congressional scrutiny and investigation involve inquiry
judgment of parties who may or may not have
into past executive branch actions in order to influence future
participated in or agreed with the development of
executive branch performance, congressional supervision
those aims. Consequently, absent safeguards, in many
allows Congress to scrutinize the exercise of delegated law-
instances the reverse of our constitutional scheme
making authority, and permits Congress to retain part of that
could be effected: Congress proposes, the Executive
delegated authority.
disposes. One safeguard, of course, is the legislative
power to enact new legislation or to change existing
Congress exercises supervision over the executive agencies
law. But without some means of overseeing post
through its veto power. It typically utilizes veto provisions when
enactment activities of the executive branch, Congress
granting the President or an executive agency the power to
would be unable to determine whether its policies
promulgate regulations with the force of law. These provisions
have been implemented in accordance with
require the President or an agency to present the proposed
legislative intent and thus whether legislative
regulations to Congress, which retains a "right" to approve or
intervention is appropriate.
disapprove any regulation before it takes effect. Such
legislative veto provisions usually provide that a proposed
Its opponents, however, criticize the legislative veto as undue
regulation will become a law after the expiration of a certain
encroachment upon the executive prerogatives. They urge
period of time, only if Congress does not affirmatively
that any post-enactment measures undertaken by the
disapprove of the regulation in the meantime. Less frequently,
legislative branch should be limited to scrutiny and
investigation; any measure beyond that would undermine the
33

separation of powers guaranteed by the Constitution. They On appeal, the U.S. Supreme Court declared § 244(c)(2)
contend that legislative veto constitutes an impermissible unconstitutional. But the Court shied away from the issue of
evasion of the President’s veto authority and intrusion into the separation of powers and instead held that the provision
powers vested in the executive or judicial branches of violates the presentment clause and bicameralism. It held that
government. Proponents counter that legislative veto the one-house veto was essentially legislative in purpose and
enhances separation of powers as it prevents the executive effect. As such, it is subject to the procedures set out in Article I
branch and independent agencies from accumulating too of the Constitution requiring the passage by a majority of both
much power. They submit that reporting requirements and Houses and presentment to the President. x x x x x x x x x
congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. Two weeks after the Chadha decision, the Court upheld, in
They do not allow Congress to review executive proposals memorandum decision, two lower court decisions invalidating
before they take effect and they do not afford the opportunity the legislative veto provisions in the Natural Gas Policy Act of
for ongoing and binding expressions of congressional intent. In 1978 and the Federal Trade Commission Improvement Act of
contrast, legislative veto permits Congress to participate 1980. Following this precedence, lower courts invalidated
prospectively in the approval or disapproval of "subordinate statutes containing legislative veto provisions although some of
law" or those enacted by the executive branch pursuant to a these provisions required the approval of both Houses of
delegation of authority by Congress. They further argue that Congress and thus met the bicameralism requirement of
legislative veto "is a necessary response by Congress to the Article I. Indeed, some of these veto provisions were not even
accretion of policy control by forces outside its chambers." In exercised.35 (emphasis supplied)
an era of delegated authority, they point out that legislative
veto "is the most efficient means Congress has yet devised to In Macalintal, given the concept and configuration of the power of
retain control over the evolution and implementation of its congressional oversight and considering the nature and powers of a
policy as declared by statute." constitutional body like the Commission on Elections, the Court struck
down the provision in RA 9189 (The Overseas Absentee Voting Act of
In Immigration and Naturalization Service v. Chadha, the U.S. 2003) creating a Joint Congressional Committee. The committee was
Supreme Court resolved the validity of legislative veto tasked not only to monitor and evaluate the implementation of the
provisions. The case arose from the order of the immigration said law but also to review, revise, amend and approve the IRR
judge suspending the deportation of Chadha pursuant to § promulgated by the Commission on Elections. The Court held that
244(c)(1) of the Immigration and Nationality Act. The United these functions infringed on the constitutional independence of the
States House of Representatives passed a resolution vetoing Commission on Elections.36
the suspension pursuant to § 244(c)(2) authorizing either House
of Congress, by resolution, to invalidate the decision of the With this backdrop, it is clear that congressional oversight is not
executive branch to allow a particular deportable alien to unconstitutional per se, meaning, it neither necessarily constitutes an
remain in the United States. The immigration judge reopened encroachment on the executive power to implement laws nor
the deportation proceedings to implement the House order undermines the constitutional separation of powers. Rather, it is
and the alien was ordered deported. The Board of Immigration integral to the checks and balances inherent in a democratic system
Appeals dismissed the alien’s appeal, holding that it had no of government. It may in fact even enhance the separation of powers
power to declare unconstitutional an act of Congress. The as it prevents the over-accumulation of power in the executive
United States Court of Appeals for Ninth Circuit held that the branch.
House was without constitutional authority to order the alien’s
deportation and that § 244(c)(2) violated the constitutional
However, to forestall the danger of congressional encroachment
doctrine on separation of powers.
"beyond the legislative sphere," the Constitution imposes two basic
34

and related constraints on Congress.37 It may not vest itself, any of its itself formulate the details or it can assign to the executive branch the
committees or its members with either executive or judicial responsibility for making necessary managerial decisions in conformity
power.38 And, when it exercises its legislative power, it must follow the with those standards.46 In the latter case, the law must be complete in
"single, finely wrought and exhaustively considered, procedures" all its essential terms and conditions when it leaves the hands of the
specified under the Constitution,39 including the procedure for legislature.47 Thus, what is left for the executive branch or the
enactment of laws and presentment. concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details (supplementary
Thus, any post-enactment congressional measure such as this should rule-making) or ascertain facts necessary to bring the law into actual
be limited to scrutiny and investigation. In particular, congressional operation (contingent rule-making).48
oversight must be confined to the following:
Administrative regulations enacted by administrative agencies to
(1) scrutiny based primarily on Congress’ power of implement and interpret the law which they are entrusted to enforce
appropriation and the budget hearings conducted in have the force of law and are entitled to respect.49 Such rules and
connection with it, its power to ask heads of departments to regulations partake of the nature of a statute50and are just as binding
appear before and be heard by either of its Houses on any as if they have been written in the statute itself. As such, they have the
matter pertaining to their departments and its power of force and effect of law and enjoy the presumption of constitutionality
confirmation40 and and legality until they are set aside with finality in an appropriate case
by a competent court.51 Congress, in the guise of assuming the role of
(2) investigation and monitoring41 of the implementation of an overseer, may not pass upon their legality by subjecting them to its
laws pursuant to the power of Congress to conduct inquiries in stamp of approval without disturbing the calculated balance of
aid of legislation.42 powers established by the Constitution. In exercising discretion to
approve or disapprove the IRR based on a determination of whether
or not they conformed with the provisions of RA 9335, Congress
Any action or step beyond that will undermine the separation of
arrogated judicial power unto itself, a power exclusively vested in this
powers guaranteed by the Constitution. Legislative vetoes fall in this
Court by the Constitution.
class.

Considered Opinion of
Legislative veto is a statutory provision requiring the President or an
Mr. Justice Dante O. Tinga
administrative agency to present the proposed implementing rules
and regulations of a law to Congress which, by itself or through a
committee formed by it, retains a "right" or "power" to approve or Moreover, the requirement that the implementing rules of a law be
disapprove such regulations before they take effect. As such, a subjected to approval by Congress as a condition for their effectivity
legislative veto in the form of a congressional oversight committee is in violates the cardinal constitutional principles of bicameralism and the
the form of an inward-turning delegation designed to attach a rule on presentment.52
congressional leash (other than through scrutiny and investigation) to
an agency to which Congress has by law initially delegated broad Section 1, Article VI of the Constitution states:
powers.43It radically changes the design or structure of the
Constitution’s diagram of power as it entrusts to Congress a direct role Section 1. The legislative power shall be vested in the Congress
in enforcing, applying or implementing its own laws.44 of the Philippines which shall consist of a Senate and a House
of Representatives, except to the extent reserved to the
Congress has two options when enacting legislation to define national people by the provision on initiative and referendum.
policy within the broad horizons of its legislative competence.45 It can (emphasis supplied)

35

Legislative power (or the power to propose, enact, amend and repeal A bill is introduced by any member of the House of
laws)53 is vested in Congress which consists of two chambers, the Representatives or the Senate except for some measures that
Senate and the House of Representatives. A valid exercise of must originate only in the former chamber.
legislative power requires the act of both chambers. Corrollarily, it can
be exercised neither solely by one of the two chambers nor by a The first reading involves only a reading of the number and title
committee of either or both chambers. Thus, assuming the validity of a of the measure and its referral by the Senate President or the
legislative veto, both a single-chamber legislative veto and a Speaker to the proper committee for study.
congressional committee legislative veto are invalid.
The bill may be "killed" in the committee or it may be
Additionally, Section 27(1), Article VI of the Constitution provides: recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there
Section 27. (1) Every bill passed by the Congress shall, before it are other bills of the same nature or purpose, they may all be
becomes a law, be presented to the President. If he approves consolidated into one bill under common authorship or as a
the same, he shall sign it, otherwise, he shall veto it and return committee bill.
the same with his objections to the House where it originated,
which shall enter the objections at large in its Journal and Once reported out, the bill shall be calendared for second
proceed to reconsider it. If, after such reconsideration, two- reading. It is at this stage that the bill is read in its entirety,
thirds of all the Members of such House shall agree to pass the scrutinized, debated upon and amended when desired. The
bill, it shall be sent, together with the objections, to the other second reading is the most important stage in the passage of
House by which it shall likewise be reconsidered, and if a bill.
approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House The bill as approved on second reading is printed in its final
shall be determined by yeas or nays, and the names of the form and copies thereof are distributed at least three days
members voting for or against shall be entered in its Journal. before the third reading. On the third reading, the members
The President shall communicate his veto of any bill to the merely register their votes and explain them if they are allowed
House where it originated within thirty days after the date of by the rules. No further debate is allowed.
receipt thereof; otherwise, it shall become a law as if he had
signed it. (emphasis supplied)
Once the bill passes third reading, it is sent to the other
chamber, where it will also undergo the three readings. If there
Every bill passed by Congress must be presented to the President for are differences between the versions approved by the two
approval or veto. In the absence of presentment to the President, no chambers, a conference committee58 representing both
bill passed by Congress can become a law. In this sense, law-making Houses will draft a compromise measure that if ratified by the
under the Constitution is a joint act of the Legislature and of the Senate and the House of Representatives will then be
Executive. Assuming that legislative veto is a valid legislative act with submitted to the President for his consideration.
the force of law, it cannot take effect without such presentment even
if approved by both chambers of Congress.
The bill is enrolled when printed as finally approved by the
Congress, thereafter authenticated with the signatures of the
In sum, two steps are required before a bill becomes a law. First, it Senate President, the Speaker, and the Secretaries of their
must be approved by both Houses of Congress.54Second, it must be respective chambers…59
presented to and approved by the President.55 As summarized by
Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is
The President’s role in law-making.
the procedure for the approval of bills:
36

The final step is submission to the President for approval. Once SEC. 13. Separability Clause. – If any provision of this Act is
approved, it takes effect as law after the required declared invalid by a competent court, the remainder of this
publication.60 Act or any provision not affected by such declaration of
invalidity shall remain in force and effect.
Where Congress delegates the formulation of rules to implement the
law it has enacted pursuant to sufficient standards established in the In Tatad v. Secretary of the Department of Energy,65 the Court laid
said law, the law must be complete in all its essential terms and down the following rules:
conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes The general rule is that where part of a statute is void as
effective because it is only upon effectivity of the statute that legal repugnant to the Constitution, while another part is valid, the
rights and obligations become available to those entitled by the valid portion, if separable from the invalid, may stand and be
language of the statute. Subject to the indispensable requisite of enforced. The presence of a separability clause in a statute
publication under the due process clause,61 the determination as to creates the presumption that the legislature intended
when a law takes effect is wholly the prerogative of Congress.62 As separability, rather than complete nullity of the statute. To
such, it is only upon its effectivity that a law may be executed and the justify this result, the valid portion must be so far independent of
executive branch acquires the duties and powers to execute the said the invalid portion that it is fair to presume that the legislature
law. Before that point, the role of the executive branch, particularly of would have enacted it by itself if it had supposed that it could
the President, is limited to approving or vetoing the law.63 not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries
From the moment the law becomes effective, any provision of law out the legislative intent. x x x
that empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of The exception to the general rule is that when the parts of a
separation of powers and is thus unconstitutional. Under this principle, statute are so mutually dependent and connected, as
a provision that requires Congress or its members to approve the conditions, considerations, inducements, or compensations for
implementing rules of a law after it has already taken effect shall be each other, as to warrant a belief that the legislature intended
unconstitutional, as is a provision that allows Congress or its members them as a whole, the nullity of one part will vitiate the rest. In
to overturn any directive or ruling made by the members of the making the parts of the statute dependent, conditional, or
executive branch charged with the implementation of the law. connected with one another, the legislature intended the
statute to be carried out as a whole and would not have
Following this rationale, Section 12 of RA 9335 should be struck down enacted it if one part is void, in which case if some parts are
as unconstitutional. While there may be similar provisions of other laws unconstitutional, all the other provisions thus dependent,
that may be invalidated for failure to pass this standard, the Court conditional, or connected must fall with them.
refrains from invalidating them wholesale but will do so at the proper
time when an appropriate case assailing those provisions is brought The separability clause of RA 9335 reveals the intention of the
before us.64 legislature to isolate and detach any invalid provision from the other
provisions so that the latter may continue in force and effect. The valid
The next question to be resolved is: what is the effect of the portions can stand independently of the invalid section. Without
unconstitutionality of Section 12 of RA 9335 on the other provisions of Section 12, the remaining provisions still constitute a complete,
the law? Will it render the entire law unconstitutional? No. intelligible and valid law which carries out the legislative intent to
optimize the revenue-generation capability and collection of the BIR
Section 13 of RA 9335 provides: and the BOC by providing for a system of rewards and sanctions

37

through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.

To be effective, administrative rules and regulations must be published


in full if their purpose is to enforce or implement existing law pursuant
to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became
effective 15 days thereafter.67 Until and unless the contrary is shown,
the IRR are presumed valid and effective even without the approval
of the Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of


RA 9335 creating a Joint Congressional Oversight Committee to
approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD.
Pursuant to Section 13 of RA 9335, the rest of the provisions remain in
force and effect.

SO ORDERED.

38

LEGISLATIVE INTERFERENCE -James Madison

G.R. No. 208566 November 19, 2013 Before the Court are consolidated petitions2 taken under Rule 65 of
the Rules of Court, all of which assail the constitutionality of the Pork
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. Barrel System. Due to the complexity of the subject matter, the Court
GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN shall heretofore discuss the system‘s conceptual underpinnings before
DIEGO, Petitioners, detailing the particulars of the constitutional challenge.
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY The Facts
OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL
TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented I. Pork Barrel: General Concept.
by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and
HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, "Pork Barrel" is political parlance of American -English
JR. in his capacity as SPEAKER OF THE HOUSE, Respondents. origin.3 Historically, its usage may be traced to the degrading ritual of
rolling out a barrel stuffed with pork to a multitude of black slaves who
x-----------------------x would cast their famished bodies into the porcine feast to assuage
their hunger with morsels coming from the generosity of their well-fed
G.R. No. 208493 master.4 This practice was later compared to the actions of American
legislators in trying to direct federal budgets in favor of their
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. districts.5 While the advent of refrigeration has made the actual pork
ALCANTARA, Petitioner, barrel obsolete, it persists in reference to political bills that "bring home
vs. the bacon" to a legislator‘s district and constituents.6 In a more
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT technical sense, "Pork Barrel" refers to an appropriation of government
and HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as spending meant for localized projects and secured solely or primarily
SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents. to bring money to a representative's district.7Some scholars on the
subject further use it to refer to legislative control of local
x-----------------------x appropriations.8

G.R. No. 209251 In the Philippines, "Pork Barrel" has been commonly referred to as
lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage would
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former
evolve in reference to certain funds of the Executive.
Provincial Board Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY II. History of Congressional Pork Barrel in the Philippines.
FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents. A. Pre-Martial Law Era (1922-1972).

PERLAS-BERNABE, J.: Act 3044,10 or the Public Works Act of 1922, is considered11 as
the earliest form of "Congressional Pork Barrel" in the Philippines
"Experience is the oracle of truth."1 since the utilization of the funds appropriated therein were
subjected to post-enactment legislator approval. Particularly,

39

in the area of fund release, Section 312 provides that the sums when "one man controlled the legislature,"19 the reprieve was
appropriated for certain public works projects13 "shall be only temporary. By 1982, the Batasang Pambansa had already
distributed x x x subject to the approval of a joint committee introduced a new item in the General Appropriations Act
elected by the Senate and the House of Representatives. "The (GAA) called the" Support for Local Development Projects"
committee from each House may also authorize one of its (SLDP) under the article on "National Aid to Local Government
members to approve the distribution made by the Secretary of Units". Based on reports,20 it was under the SLDP that the
Commerce and Communications."14 Also, in the area of fund practice of giving lump-sum allocations to individual legislators
realignment, the same section provides that the said secretary, began, with each assemblyman receiving ₱500,000.00.
"with the approval of said joint committee, or of the authorized Thereafter, assemblymen would communicate their project
members thereof, may, for the purposes of said distribution, preferences to the Ministry of Budget and Management for
transfer unexpended portions of any item of appropriation approval. Then, the said ministry would release the allocation
under this Act to any other item hereunder." papers to the Ministry of Local Governments, which would, in
turn, issue the checks to the city or municipal treasurers in the
In 1950, it has been documented15 that post-enactment assemblyman‘s locality. It has been further reported that
legislator participation broadened from the areas of fund "Congressional Pork Barrel" projects under the SLDP also began
release and realignment to the area of project identification. to cover not only public works projects, or so- called "hard
During that year, the mechanics of the public works act was projects", but also "soft projects",21 or non-public works projects
modified to the extent that the discretion of choosing projects such as those which would fall under the categories of, among
was transferred from the Secretary of Commerce and others, education, health and livelihood.22
Communications to legislators. "For the first time, the law
carried a list of projects selected by Members of Congress, C. Post-Martial Law Era:
they ‘being the representatives of the people, either on their
own account or by consultation with local officials or civil Corazon Cojuangco Aquino Administration (1986-1992).
leaders.‘"16 During this period, the pork barrel process
commenced with local government councils, civil groups, and After the EDSA People Power Revolution in 1986 and the
individuals appealing to Congressmen or Senators for projects. restoration of Philippine democracy, "Congressional Pork Barrel"
Petitions that were accommodated formed part of a was revived in the form of the "Mindanao Development Fund"
legislator‘s allocation, and the amount each legislator would and the "Visayas Development Fund" which were created with
eventually get is determined in a caucus convened by the lump-sum appropriations of ₱480 Million and ₱240 Million,
majority. The amount was then integrated into the respectively, for the funding of development projects in the
administration bill prepared by the Department of Public Works Mindanao and Visayas areas in 1989. It has been
and Communications. Thereafter, the Senate and the House of documented23 that the clamor raised by the Senators and the
Representatives added their own provisions to the bill until it Luzon legislators for a similar funding, prompted the creation of
was signed into law by the President – the Public Works Act.17 In the "Countrywide Development Fund" (CDF) which was
the 1960‘s, however, pork barrel legislation reportedly ceased integrated into the 1990 GAA24 with an initial funding of ₱2.3
in view of the stalemate between the House of Billion to cover "small local infrastructure and other priority
Representatives and the Senate.18 community projects."

B. Martial Law Era (1972-1986). Under the GAAs for the years 1991 and 1992,25 CDF funds were,
with the approval of the President, to be released directly to
While the previous" Congressional Pork Barrel" was apparently the implementing agencies but "subject to the submission of
discontinued in 1972 after Martial Law was declared, an era the required list of projects and activities."Although the GAAs
40

from 1990 to 1992 were silent as to the amounts of allocations shall be disbursed for projects not included in the list herein
of the individual legislators, as well as their participation in the required."
identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF The following year, or in 1998,36 the foregoing provisions
funds, while Senators were receiving ₱18 Million each, without regarding the required lists and endorsements were
any limitation or qualification, and that they could identify any reproduced, except that the publication of the project list was
kind of project, from hard or infrastructure projects such as no longer required as the list itself sufficed for the release of
roads, bridges, and buildings to "soft projects" such as CDF Funds.
textbooks, medicines, and scholarships.27
The CDF was not, however, the lone form of "Congressional
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998). Pork Barrel" at that time. Other forms of "Congressional Pork
Barrel" were reportedly fashioned and inserted into the GAA
The following year, or in 1993,28 the GAA explicitly stated that (called "Congressional Insertions" or "CIs") in order to
the release of CDF funds was to be made upon the submission perpetuate the ad ministration‘s political agenda.37 It has been
of the list of projects and activities identified by, among others, articulated that since CIs "formed part and parcel of the
individual legislators. For the first time, the 1993 CDF Article budgets of executive departments, they were not easily
included an allocation for the Vice-President.29 As such, identifiable and were thus harder to monitor." Nonetheless, the
Representatives were allocated ₱12.5 Million each in CDF lawmakers themselves as well as the finance and budget
funds, Senators, ₱18 Million each, and the Vice-President, ₱20 officials of the implementing agencies, as well as the DBM,
Million. purportedly knew about the insertions.38 Examples of these CIs
are the Department of Education (DepEd) School Building
In 1994,30 1995,31 and 1996,32 the GAAs contained the same Fund, the Congressional Initiative Allocations, the Public Works
provisions on project identification and fund release as found Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The
in the 1993 CDF Article. In addition, however, the Department allocations for the School Building Fund, particularly, ―shall be
of Budget and Management (DBM) was directed to submit made upon prior consultation with the representative of the
reports to the Senate Committee on Finance and the House legislative district concerned.”40 Similarly, the legislators had the
Committee on Appropriations on the releases made from the power to direct how, where and when these appropriations
funds.33 were to be spent.41

Under the 199734 CDF Article, Members of Congress and the E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
Vice-President, in consultation with the implementing agency
concerned, were directed to submit to the DBM the list of 50% In 1999,42 the CDF was removed in the GAA and replaced by
of projects to be funded from their respective CDF allocations three (3) separate forms of CIs, namely, the "Food Security
which shall be duly endorsed by (a) the Senate President and Program Fund,"43 the "Lingap Para Sa Mahihirap Program
the Chairman of the Committee on Finance, in the case of the Fund,"44and the "Rural/Urban Development Infrastructure
Senate, and (b) the Speaker of the House of Representatives Program Fund,"45 all of which contained a special provision
and the Chairman of the Committee on Appropriations, in the requiring "prior consultation" with the Member s of Congress for
case of the House of Representatives; while the list for the the release of the funds.
remaining 50% was to be submitted within six (6) months
thereafter. The same article also stated that the project list, It was in the year 200046 that the "Priority Development
which would be published by the DBM,35 "shall be the basis for Assistance Fund" (PDAF) appeared in the GAA. The
the release of funds" and that "no funds appropriated herein requirement of "prior consultation with the respective
41

Representative of the District" before PDAF funds were directly predecessors, explicitly required prior consultation with the
released to the implementing agency concerned was concerned Member of Congress61anent certain aspects of
explicitly stated in the 2000 PDAF Article. Moreover, project implementation.
realignment of funds to any expense category was expressly
allowed, with the sole condition that no amount shall be used Significantly, it was during this era that provisions which allowed
to fund personal services and other personnel benefits.47 The formal participation of non-governmental organizations (NGO)
succeeding PDAF provisions remained the same in view of the in the implementation of government projects were
re-enactment48 of the 2000 GAA for the year 2001. introduced. In the Supplemental Budget for 2006, with respect
to the appropriation for school buildings, NGOs were, by law,
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010). encouraged to participate. For such purpose, the law stated
that "the amount of at least ₱250 Million of the ₱500 Million
The 200249 PDAF Article was brief and straightforward as it allotted for the construction and completion of school
merely contained a single special provision ordering the buildings shall be made available to NGOs including the
release of the funds directly to the implementing agency or Federation of Filipino-Chinese Chambers of Commerce and
local government unit concerned, without further Industry, Inc. for its "Operation Barrio School" program, with
qualifications. The following year, 2003,50 the same single capability and proven track records in the construction of
provision was present, with simply an expansion of purpose public school buildings x x x."62 The same allocation was made
and express authority to realign. Nevertheless, the provisions in available to NGOs in the 2007 and 2009 GAAs under the
the 2003 budgets of the Department of Public Works and DepEd Budget.63 Also, it was in 2007 that the Government
Highways51 (DPWH) and the DepEd52 required prior Procurement Policy Board64 (GPPB) issued Resolution No. 12-
consultation with Members of Congress on the aspects of 2007 dated June 29, 2007 (GPPB Resolution 12-2007),
implementation delegation and project list submission, amending the implementing rules and regulations65 of RA
respectively. In 2004, the 2003 GAA was re-enacted.53 9184,66 the Government Procurement Reform Act, to include,
as a form of negotiated procurement,67 the procedure
In 2005,54 the PDAF Article provided that the PDAF shall be whereby the Procuring Entity68(the implementing agency) may
used "to fund priority programs and projects under the ten enter into a memorandum of agreement with an NGO,
point agenda of the national government and shall be provided that "an appropriation law or ordinance earmarks an
released directly to the implementing agencies." It also amount to be specifically contracted out to NGOs."69
introduced the program menu concept,55 which is essentially a
list of general programs and implementing agencies from G. Present Administration (2010-Present).
which a particular PDAF project may be subsequently chosen
by the identifying authority. The 2005 GAA was re-enacted56 in Differing from previous PDAF Articles but similar to the CDF
2006 and hence, operated on the same bases. In similar Articles, the 201170 PDAF Article included an express statement
regard, the program menu concept was consistently on lump-sum amounts allocated for individual legislators and
integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs. the Vice-President: Representatives were given ₱70 Million
each, broken down into ₱40 Million for "hard projects" and ₱30
Textually, the PDAF Articles from 2002 to 2010 were silent with Million for "soft projects"; while ₱200 Million was given to each
respect to the specific amounts allocated for the individual Senator as well as the Vice-President, with a ₱100 Million
legislators, as well as their participation in the proposal and allocation each for "hard" and "soft projects." Likewise, a
identification of PDAF projects to be funded. In contrast to the provision on realignment of funds was included, but with the
PDAF Articles, however, the provisions under the DepEd School qualification that it may be allowed only once. The same
Building Program and the DPWH budget, similar to its provision also allowed the Secretaries of Education, Health,
42

Social Welfare and Development, Interior and Local President such as the Malampaya Funds and the Presidential Social
Government, Environment and Natural Resources, Energy, and Fund.
Public Works and Highways to realign PDAF Funds, with the
further conditions that: (a) realignment is within the same On the one hand, the Malampaya Funds was created as a special
implementing unit and same project category as the original fund under Section 880 of Presidential Decree No. (PD) 910,81 issued by
project, for infrastructure projects; (b) allotment released has then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In
not yet been obligated for the original scope of work, and (c) enacting the said law, Marcos recognized the need to set up a
the request for realignment is with the concurrence of the special fund to help intensify, strengthen, and consolidate
legislator concerned.71 government efforts relating to the exploration, exploitation, and
development of indigenous energy resources vital to economic
In the 201272 and 201373 PDAF Articles, it is stated that the growth.82 Due to the energy-related activities of the government in the
"identification of projects and/or designation of beneficiaries Malampaya natural gas field in Palawan, or the "Malampaya Deep
shall conform to the priority list, standard or design prepared by Water Gas-to-Power Project",83 the special fund created under PD 910
each implementing agency (priority list requirement) x x x." has been currently labeled as Malampaya Funds.
However, as practiced, it would still be the individual legislator
who would choose and identify the project from the said On the other hand the Presidential Social Fund was created under
priority list.74 Section 12, Title IV84 of PD 1869,85 or the Charter of the Philippine
Amusement and Gaming Corporation (PAGCOR). PD 1869 was
Provisions on legislator allocations75 as well as fund similarly issued by Marcos on July 11, 1983. More than two (2) years
realignment76 were included in the 2012 and 2013 PDAF after, he amended PD 1869 and accordingly issued PD 1993 on
Articles; but the allocation for the Vice-President, which was October 31, 1985,86 amending Section 1287 of the former law. As it
pegged at ₱200 Million in the 2011 GAA, had been deleted. In stands, the Presidential Social Fund has been described as a special
addition, the 2013 PDAF Article now allowed LGUs to be funding facility managed and administered by the Presidential
identified as implementing agencies if they have the technical Management Staff through which the President provides direct
capability to implement the projects.77 Legislators were also assistance to priority programs and projects not funded under the
allowed to identify programs/projects, except for assistance to regular budget. It is sourced from the share of the government in the
indigent patients and scholarships, outside of his legislative aggregate gross earnings of PAGCOR.88
district provided that he secures the written concurrence of
the legislator of the intended outside-district, endorsed by the IV. Controversies in the Philippines.
Speaker of the House.78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as Over the decades, "pork" funds in the Philippines have increased
requests for release of funds, were all required to be favorably tremendously,89 owing in no small part to previous Presidents who
endorsed by the House Committee on Appropriations and the reportedly used the "Pork Barrel" in order to gain congressional
Senate Committee on Finance, as the case may be.79 support.90 It was in 1996 when the first controversy surrounding the
"Pork Barrel" erupted. Former Marikina City Representative Romeo
III. History of Presidential Pork Barrel in the Philippines. Candazo (Candazo), then an anonymous source, "blew the lid on the
huge sums of government money that regularly went into the pockets
While the term "Pork Barrel" has been typically associated with lump- of legislators in the form of kickbacks."91 He said that "the kickbacks
sum, discretionary funds of Members of Congress, the present cases were ‘SOP‘ (standard operating procedure) among legislators and
and the recent controversies on the matter have, however, shown ranged from a low 19 percent to a high 52 percent of the cost of
that the term‘s usage has expanded to include certain funds of the each project, which could be anything from dredging, rip rapping,
sphalting, concreting, and construction of school buildings."92 "Other
43

sources of kickbacks that Candazo identified were public funds application of these funds and the implementation of projects by the
intended for medicines and textbooks. A few days later, the tale of appropriate implementing agencies and several government-owned-
the money trail became the banner story of the Philippine Daily and-controlled corporations (GOCCs).101 The total releases covered
Inquirer issue of August 13, 1996, accompanied by an illustration of a by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in
roasted pig."93 "The publication of the stories, including those about VILP, representing 58% and 32%, respectively, of the total PDAF and
congressional initiative allocations of certain lawmakers, including ₱3.6 VILP releases that were found to have been made nationwide during
Billion for a Congressman, sparked public outrage."94 the audit period.102 Accordingly, the Co A‘s findings contained in its
Report No. 2012-03 (CoA Report), entitled "Priority Development
Thereafter, or in 2004, several concerned citizens sought the Assistance Fund (PDAF) and Various Infrastructures including Local
nullification of the PDAF as enacted in the 2004 GAA for being Projects (VILP)," were made public, the highlights of which are as
unconstitutional. Unfortunately, for lack of "any pertinent evidentiary follows:103
support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress," ● Amounts released for projects identified by a considerable number
the petition was dismissed.95 of legislators significantly exceeded their respective allocations.

Recently, or in July of the present year, the National Bureau of ● Amounts were released for projects outside of legislative districts of
Investigation (NBI) began its probe into allegations that "the sponsoring members of the Lower House.
government has been defrauded of some ₱10 Billion over the past 10
years by a syndicate using funds from the pork barrel of lawmakers ● Total VILP releases for the period exceeded the total amount
and various government agencies for scores of ghost projects."96 The appropriated under the 2007 to 2009 GAAs.
investigation was spawned by sworn affidavits of six (6) whistle-blowers
who declared that JLN Corporation – "JLN" standing for Janet Lim ● Infrastructure projects were constructed on private lots without these
Napoles (Napoles) – had swindled billions of pesos from the public having been turned over to the government.
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an
entire decade. While the NGOs were supposedly the ultimate
● Significant amounts were released to implementing agencies
recipients of PDAF funds, the whistle-blowers declared that the money
without the latter‘s endorsement and without considering their
was diverted into Napoles‘ private accounts.97 Thus, after its
mandated functions, administrative and technical capabilities to
investigation on the Napoles controversy, criminal complaints were
implement projects.
filed before the Office of the Ombudsman, charging five (5)
lawmakers for Plunder, and three (3) other lawmakers for Malversation,
● Implementation of most livelihood projects was not undertaken by
Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices
the implementing agencies themselves but by NGOs endorsed by the
Act. Also recommended to be charged in the complaints are some of
proponent legislators to which the Funds were transferred.
the lawmakers‘ chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the several
presidents of the NGOs set up by Napoles.98 ● The funds were transferred to the NGOs in spite of the absence of
any appropriation law or ordinance.
On August 16, 2013, the Commission on Audit (CoA) released the
results of a three-year audit investigation99covering the use of ● Selection of the NGOs were not compliant with law and regulations.
legislators' PDAF from 2007 to 2009, or during the last three (3) years of
the Arroyo administration. The purpose of the audit was to determine ● Eighty-Two (82) NGOs entrusted with implementation of seven
the propriety of releases of funds under PDAF and the Various hundred seventy two (772) projects amount to ₱6.156 Billion were
Infrastructures including Local Projects (VILP)100 by the DBM, the either found questionable, or submitted questionable/spurious
44

documents, or failed to liquidate in whole or in part their utilization of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules
the Funds. of Court (Belgica Petition), seeking that the annual "Pork Barrel
System," presently embodied in the provisions of the GAA of 2013
● Procurement by the NGOs, as well as some implementing agencies, which provided for the 2013 PDAF, and the Executive‘s lump-sum,
of goods and services reportedly used in the projects were not discretionary funds, such as the Malampaya Funds and the
compliant with law. Presidential Social Fund,107 be declared unconstitutional and null and
void for being acts constituting grave abuse of discretion. Also, they
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at pray that the Court issue a TRO against respondents Paquito N.
least ₱900 Million from royalties in the operation of the Malampaya gas Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De
project off Palawan province intended for agrarian reform Leon, in their respective capacities as the incumbent Executive
beneficiaries has gone into a dummy NGO."104 According to Secretary, Secretary of the Department of Budget and Management
incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA (DBM), and National Treasurer, or their agents, for them to immediately
Chairperson), the CoA is, as of this writing, in the process of preparing cease any expenditure under the aforesaid funds. Further, they pray
"one consolidated report" on the Malampaya Funds.105 that the Court order the foregoing respondents to release to the CoA
and to the public: (a) "the complete schedule/list of legislators who
have availed of their PDAF and VILP from the years 2003 to 2013,
V. The Procedural Antecedents.
specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b)
Spurred in large part by the findings contained in the CoA Report and
"the use of the Executive‘s lump-sum, discretionary funds, including the
the Napoles controversy, several petitions were lodged before the
proceeds from the x x x Malampaya Funds and remittances from the
Court similarly seeking that the "Pork Barrel System" be declared
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
unconstitutional. To recount, the relevant procedural antecedents in
and the recipient entities or individuals, and all pertinent data
these cases are as follows:
thereto."108 Also, they pray for the "inclusion in budgetary deliberations
with the Congress of all presently off-budget, lump-sum, discretionary
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), funds including, but not limited to, proceeds from the Malampaya
President of the Social Justice Society, filed a Petition for Prohibition of Funds and remittances from the PAGCOR."109 The Belgica Petition was
even date under Rule 65 of the Rules of Court (Alcantara Petition), docketed as G.R. No. 208566.110
seeking that the "Pork Barrel System" be declared unconstitutional,
and a writ of prohibition be issued permanently restraining
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their
(Nepomuceno), filed a Petition dated August 23, 2012 (Nepomuceno
respective capacities as the incumbent Senate President and Speaker
Petition), seeking that the PDAF be declared unconstitutional, and a
of the House of Representatives, from further taking any steps to enact
cease and desist order be issued restraining President Benigno Simeon
legislation appropriating funds for the "Pork Barrel System," in whatever
S. Aquino III (President Aquino) and Secretary Abad from releasing
form and by whatever name it may be called, and from approving
such funds to Members of Congress and, instead, allow their release to
further releases pursuant thereto.106 The Alcantara Petition was
fund priority projects identified and approved by the Local
docketed as G.R. No. 208493.
Development Councils in consultation with the executive
departments, such as the DPWH, the Department of Tourism, the
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Department of Health, the Department of Transportation, and
Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San Diego Communication and the National Economic Development
(Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112
Petition For Certiorari and Prohibition With Prayer For The Immediate
Issuance of Temporary Restraining Order (TRO) and/or Writ of

45

On September 10, 2013, the Court issued a Resolution of even date (a) On October 8 and 10, 2013, the Oral Arguments were conducted.
consolidating all cases; (b) requiring public respondents to comment Thereafter, the Court directed the parties to submit their respective
on the consolidated petitions; (c) issuing a TRO (September 10, 2013 memoranda within a period of seven (7) days, or until October 17,
TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or 2013, which the parties subsequently did.
any of the persons acting under their authority from releasing (1) the
remaining PDAF allocated to Members of Congress under the GAA of The Issues Before the Court
2013, and (2) Malampaya Funds under the phrase "for such other
purposes as may be hereafter directed by the President" pursuant to Based on the pleadings, and as refined during the Oral Arguments,
Section 8 of PD 910 but not for the purpose of "financing energy the following are the main issues for the Court‘s resolution:
resource development and exploitation programs and projects of the
governmentǁ under the same provision; and (d) setting the
I. Procedural Issues.
consolidated cases for Oral Arguments on October 8, 2013.
Whether or not (a) the issues raised in the consolidated petitions
On September 23, 2013, the Office of the Solicitor General (OSG) filed
involve an actual and justiciable controversy; (b) the issues raised in
a Consolidated Comment (Comment) of even date before the Court,
the consolidated petitions are matters of policy not subject to judicial
seeking the lifting, or in the alternative, the partial lifting with respect to
review; (c) petitioners have legal standing to sue; and (d) the Court‘s
educational and medical assistance purposes, of the Court‘s
Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766,
September 10, 2013 TRO, and that the consolidated petitions be
and 113888, entitled "Philippine Constitution Association v.
dismissed for lack of merit.113
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No.
164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary
On September 24, 2013, the Court issued a Resolution of even date of Budget and Management"115 (LAMP) bar the re-litigatio n of the
directing petitioners to reply to the Comment. issue of constitutionality of the "Pork Barrel System" under the principles
of res judicata and stare decisis.
Petitioners, with the exception of Nepomuceno, filed their respective
replies to the Comment: (a) on September 30, 2013, Villegas filed a II. Substantive Issues on the "Congressional Pork Barrel."
separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30,
Whether or not the 2013 PDAF Article and all other Congressional Pork
2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a
Barrel Laws similar thereto are unconstitutional considering that they
Reply dated October 1, 2013.
violate the principles of/constitutional provisions on (a) separation of
powers; (b) non-delegability of legislative power; (c) checks and
On October 1, 2013, the Court issued an Advisory providing for the balances; (d) accountability; (e) political dynasties; and (f) local
guidelines to be observed by the parties for the Oral Arguments autonomy.
scheduled on October 8, 2013. In view of the technicality of the issues
material to the present cases, incumbent Solicitor General Francis H.
III. Substantive Issues on the "Presidential Pork Barrel."
Jardeleza (Solicitor General) was directed to bring with him during the
Oral Arguments representative/s from the DBM and Congress who
Whether or not the phrases (a) "and for such other purposes as may
would be able to competently and completely answer questions
be hereafter directed by the President" under Section 8 of PD
related to, among others, the budgeting process and its
910,116 relating to the Malampaya Funds, and (b) "to finance the
implementation. Further, the CoA Chairperson was appointed as
priority infrastructure development projects and to finance the
amicus curiae and thereby requested to appear before the Court
restoration of damaged or destroyed facilities due to calamities, as
during the Oral Arguments.
may be directed and authorized by the Office of the President of the

46

Philippines" under Section 12 of PD 1869, as amended by PD 1993, are already ripe for adjudication. "A question is ripe for adjudication
relating to the Presidential Social Fund, are unconstitutional insofar as when the act being challenged has had a direct adverse effect on
they constitute undue delegations of legislative power. the individual challenging it. It is a prerequisite that something had
then been accomplished or performed by either branch before a
These main issues shall be resolved in the order that they have been court may come into the picture, and the petitioner must allege the
stated. In addition, the Court shall also tackle certain ancillary issues as existence of an immediate or threatened injury to itself as a result of
prompted by the present cases. the challenged action."123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they are of
The Court’s Ruling authority to resolve hypothetical or moot questions."124

The petitions are partly granted. Based on these principles, the Court finds that there exists an actual
and justiciable controversy in these cases.
I. Procedural Issues.
The requirement of contrariety of legal rights is clearly satisfied by the
antagonistic positions of the parties on the constitutionality of the "Pork
The prevailing rule in constitutional litigation is that no question
Barrel System." Also, the questions in these consolidated cases are ripe
involving the constitutionality or validity of a law or governmental act
for adjudication since the challenged funds and the provisions
may be heard and decided by the Court unless there is compliance
allowing for their utilization – such as the 2013 GAA for the PDAF, PD
with the legal requisites for judicial inquiry,117 namely: (a) there must be
910 for the Malampaya Funds and PD 1869, as amended by PD 1993,
an actual case or controversy calling for the exercise of judicial
for the Presidential Social Fund – are currently existing and operational;
power; (b) the person challenging the act must have the standing to
hence, there exists an immediate or threatened injury to petitioners as
question the validity of the subject act or issuance; (c) the question of
a result of the unconstitutional use of these public funds.
constitutionality must be raised at the earliest opportunity ; and (d) the
issue of constitutionality must be the very lis mota of the case.118 Of
these requisites, case law states that the first two are the most As for the PDAF, the Court must dispel the notion that the issues related
important119and, therefore, shall be discussed forthwith. thereto had been rendered moot and academic by the reforms
undertaken by respondents. A case becomes moot when there is no
more actual controversy between the parties or no useful purpose
A. Existence of an Actual Case or Controversy.
can be served in passing upon the merits.125 Differing from this
description, the Court observes that respondents‘ proposed line-item
By constitutional fiat, judicial power operates only when there is an
budgeting scheme would not terminate the controversy nor diminish
actual case or controversy.120 This is embodied in Section 1, Article VIII
the useful purpose for its resolution since said reform is geared towards
of the 1987 Constitution which pertinently states that "judicial power
the 2014 budget, and not the 2013 PDAF Article which, being a distinct
includes the duty of the courts of justice to settle actual controversies
subject matter, remains legally effective and existing. Neither will the
involving rights which are legally demandable and enforceable x x x."
President‘s declaration that he had already "abolished the PDAF"
Jurisprudence provides that an actual case or controversy is one
render the issues on PDAF moot precisely because the Executive
which "involves a conflict of legal rights, an assertion of opposite legal
branch of government has no constitutional authority to nullify or
claims, susceptible of judicial resolution as distinguished from a
annul its legal existence. By constitutional design, the annulment or
hypothetical or abstract difference or dispute.121 In other words, "there
nullification of a law may be done either by Congress, through the
must be a contrariety of legal rights that can be interpreted and
passage of a repealing law, or by the Court, through a declaration of
enforced on the basis of existing law and jurisprudence."122 Related to
unconstitutionality. Instructive on this point is the following exchange
the requirement of an actual case or controversy is the requirement of
between Associate Justice Antonio T. Carpio (Justice Carpio) and the
"ripeness," meaning that the questions raised for constitutional scrutiny
Solicitor General during the Oral Arguments:126
47

Justice Carpio: The President has taken an oath to faithfully execute Justice Carpio: The President has no power to legally abolish PDAF.
the law,127 correct? Solicitor General Jardeleza: Yes, Your Honor. (Emphases supplied)

Justice Carpio: And so the President cannot refuse to implement the Even on the assumption of mootness, jurisprudence, nevertheless,
General Appropriations Act, correct? dictates that "the moot and academic‘ principle is not a magical
formula that can automatically dissuade the Court in resolving a
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case." The Court will decide cases, otherwise moot, if: first, there is a
case, for example of the PDAF, the President has a duty to execute grave violation of the Constitution; second, the exceptional character
the laws but in the face of the outrage over PDAF, the President was of the situation and the paramount public interest is involved; third,
saying, "I am not sure that I will continue the release of the soft when the constitutional issue raised requires formulation of controlling
projects," and that started, Your Honor. Now, whether or not that … principles to guide the bench, the bar, and the public; and fourth, the
(interrupted) case is capable of repetition yet evading review.129

Justice Carpio: Yeah. I will grant the President if there are anomalies in The applicability of the first exception is clear from the fundamental
the project, he has the power to stop the releases in the meantime, to posture of petitioners – they essentially allege grave violations of the
investigate, and that is Section 38 of Chapter 5 of Book 6 of the Constitution with respect to, inter alia, the principles of separation of
Revised Administrative Code128 x x x. So at most the President can powers, non-delegability of legislative power, checks and balances,
suspend, now if the President believes that the PDAF is accountability and local autonomy.
unconstitutional, can he just refuse to implement it?
The applicability of the second exception is also apparent from the
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in nature of the interests involved
the specific case of the PDAF because of the CoA Report, because of
the reported irregularities and this Court can take judicial notice, even – the constitutionality of the very system within which significant
outside, outside of the COA Report, you have the report of the whistle- amounts of public funds have been and continue to be utilized and
blowers, the President was just exercising precisely the duty …. expended undoubtedly presents a situation of exceptional character
as well as a matter of paramount public interest. The present petitions,
xxxx in fact, have been lodged at a time when the system‘s flaws have
never before been magnified. To the Court‘s mind, the coalescence
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, of the CoA Report, the accounts of numerous whistle-blowers, and the
there are anomalies, you stop and investigate, and prosecute, he has government‘s own recognition that reforms are needed "to address
done that. But, does that mean that PDAF has been repealed? the reported abuses of the PDAF"130 demonstrates a prima facie
pattern of abuse which only underscores the importance of the
matter. It is also by this finding that the Court finds petitioners‘ claims
Solicitor General Jardeleza: No, Your Honor x x x.
as not merely theorized, speculative or hypothetical. Of note is the
weight accorded by the Court to the findings made by the CoA
xxxx
which is the constitutionally-mandated audit arm of the government.
In Delos Santos v. CoA,131 a recent case wherein the Court upheld the
Justice Carpio: So that PDAF can be legally abolished only in two (2) CoA‘s disallowance of irregularly disbursed PDAF funds, it was
cases. Congress passes a law to repeal it, or this Court declares it emphasized that:
unconstitutional, correct?
The COA is endowed with enough latitude to determine, prevent, and
Solictor General Jardeleza: Yes, Your Honor. disallow irregular, unnecessary, excessive, extravagant or
48

unconscionable expenditures of government funds. It is tasked to be passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork
vigilant and conscientious in safeguarding the proper use of the Barrel System," by its multifarious iterations throughout the course of
government's, and ultimately the people's, property. The exercise of its history, lends a semblance of truth to petitioners‘ claim that "the same
general audit power is among the constitutional mechanisms that dog will just resurface wearing a different collar."135 In Sanlakas v.
gives life to the check and balance system inherent in our form of Executive Secretary,136 the government had already backtracked on
government. a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "to prevent similar
It is the general policy of the Court to sustain the decisions of questions from re- emerging."137 The situation similarly holds true to
administrative authorities, especially one which is constitutionally- these cases. Indeed, the myriad of issues underlying the manner in
created, such as the CoA, not only on the basis of the doctrine of which certain public funds are spent, if not resolved at this most
separation of powers but also for their presumed expertise in the laws opportune time, are capable of repetition and hence, must not
they are entrusted to enforce. Findings of administrative agencies are evade judicial review.
accorded not only respect but also finality when the decision and
order are not tainted with unfairness or arbitrariness that would B. Matters of Policy: the Political Question Doctrine.
amount to grave abuse of discretion. It is only when the CoA has
acted without or in excess of jurisdiction, or with grave abuse of The "limitation on the power of judicial review to actual cases and
discretion amounting to lack or excess of jurisdiction, that this Court controversiesǁ carries the assurance that "the courts will not intrude into
entertains a petition questioning its rulings. x x x. (Emphases supplied) areas committed to the other branches of government."138 Essentially,
the foregoing limitation is a restatement of the political question
Thus, if only for the purpose of validating the existence of an actual doctrine which, under the classic formulation of Baker v.
and justiciable controversy in these cases, the Court deems the Carr,139applies when there is found, among others, "a textually
findings under the CoA Report to be sufficient. demonstrable constitutional commitment of the issue to a coordinate
political department," "a lack of judicially discoverable and
The Court also finds the third exception to be applicable largely due manageable standards for resolving it" or "the impossibility of deciding
to the practical need for a definitive ruling on the system‘s without an initial policy determination of a kind clearly for non- judicial
constitutionality. As disclosed during the Oral Arguments, the CoA discretion." Cast against this light, respondents submit that the "the
Chairperson estimates that thousands of notices of disallowances will political branches are in the best position not only to perform budget-
be issued by her office in connection with the findings made in the related reforms but also to do them in response to the specific
CoA Report. In this relation, Associate Justice Marvic Mario Victor F. demands of their constituents" and, as such, "urge the Court not to
Leonen (Justice Leonen) pointed out that all of these would eventually impose a solution at this stage."140
find their way to the courts.132 Accordingly, there is a compelling need
to formulate controlling principles relative to the issues raised herein in The Court must deny respondents‘ submission.
order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but Suffice it to state that the issues raised before the Court do not present
more importantly, so that the government may be guided on how political but legal questions which are within its province to resolve. A
public funds should be utilized in accordance with constitutional political question refers to "those questions which, under the
principles. Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
Finally, the application of the fourth exception is called for by the delegated to the Legislature or executive branch of the Government.
recognition that the preparation and passage of the national budget It is concerned with issues dependent upon the wisdom, not legality,
is, by constitutional imprimatur, an affair of annual occurrence.133 The of a particular measure."141 The intrinsic constitutionality of the "Pork
relevance of the issues before the Court does not cease with the Barrel System" is not an issue dependent upon the wisdom of the
49

political branches of government but rather a legal one which the arrest or in any manner impede the endeavors of the two other
Constitution itself has commanded the Court to act upon. Scrutinizing branches but, in fact, help ensure that the pillars of change are
the contours of the system along constitutional lines is a task that the erected on firm constitutional grounds. After all, it is in the best interest
political branches of government are incapable of rendering precisely of the people that each great branch of government, within its own
because it is an exercise of judicial power. More importantly, the sphere, contributes its share towards achieving a holistic and genuine
present Constitution has not only vested the Judiciary the right to solution to the problems of society. For all these reasons, the Court
exercise judicial power but essentially makes it a duty to proceed cannot heed respondents‘ plea for judicial restraint.
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any
clearer: "The judicial power shall be vested in one Supreme Court and C. Locus Standi.
in such lower courts as may be established by law. It includes the duty
of the courts of justice to settle actual controversies involving rights "The gist of the question of standing is whether a party alleges such
which are legally demandable and enforceable, and to determine personal stake in the outcome of the controversy as to assure that
whether or not there has been a grave abuse of discretion amounting concrete adverseness which sharpens the presentation of issues upon
to lack or excess of jurisdiction on the part of any branch or which the court depends for illumination of difficult constitutional
instrumentality of the Government." In Estrada v. Desierto,142 the questions. Unless a person is injuriously affected in any of his
expanded concept of judicial power under the 1987 Constitution and constitutional rights by the operation of statute or ordinance, he has
its effect on the political question doctrine was explained as follows:143 no standing."145

To a great degree, the 1987 Constitution has narrowed the reach of Petitioners have come before the Court in their respective capacities
the political question doctrine when it expanded the power of judicial as citizen-taxpayers and accordingly, assert that they "dutifully
review of this court not only to settle actual controversies involving contribute to the coffers of the National Treasury."146 Clearly, as
rights which are legally demandable and enforceable but also to taxpayers, they possess the requisite standing to question the validity
determine whether or not there has been a grave abuse of discretion of the existing "Pork Barrel System" under which the taxes they pay
amounting to lack or excess of jurisdiction on the part of any branch have been and continue to be utilized. It is undeniable that
or instrumentality of government. Heretofore, the judiciary has focused petitioners, as taxpayers, are bound to suffer from the unconstitutional
on the "thou shalt not's" of the Constitution directed against the usage of public funds, if the Court so rules. Invariably, taxpayers have
exercise of its jurisdiction. With the new provision, however, courts are been allowed to sue where there is a claim that public funds are
given a greater prerogative to determine what it can do to prevent illegally disbursed or that public money is being deflected to any
grave abuse of discretion amounting to lack or excess of jurisdiction improper purpose, or that public funds are wasted through the
on the part of any branch or instrumentality of government. Clearly, enforcement of an invalid or unconstitutional law,147 as in these cases.
the new provision did not just grant the Court power of doing nothing.
x x x (Emphases supplied)
Moreover, as citizens, petitioners have equally fulfilled the standing
requirement given that the issues they have raised may be classified
It must also be borne in mind that ― when the judiciary mediates to as matters "of transcendental importance, of overreaching
allocate constitutional boundaries, it does not assert any superiority significance to society, or of paramount public interest."148 The CoA
over the other departments; does not in reality nullify or invalidate an Chairperson‘s statement during the Oral Arguments that the present
act of the legislature or the executive, but only asserts the solemn and controversy involves "not merely a systems failure" but a "complete
sacred obligation assigned to it by the Constitution."144 To a great breakdown of controls"149 amplifies, in addition to the matters above-
extent, the Court is laudably cognizant of the reforms undertaken by discussed, the seriousness of the issues involved herein. Indeed, of
its co-equal branches of government. But it is by constitutional force greater import than the damage caused by the illegal expenditure of
that the Court must faithfully perform its duty. Ultimately, it is the public funds is the mortal wound inflicted upon the fundamental law
Court‘s avowed intention that a resolution of these cases would not
50

by the enforcement of an invalid statute.150 All told, petitioners have powerful countervailing considerations, like cases ought to be
sufficient locus standi to file the instant cases. decided alike. Thus, where the same questions relating to the same
event have been put forward by the parties similarly situated as in a
D. Res Judicata and Stare Decisis. previous case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to re-litigate the same issue.153
Res judicata (which means a "matter adjudged") and stare decisis non
quieta et movere (or simply, stare decisis which means "follow past Philconsa was the first case where a constitutional challenge against a
precedents and do not disturb what has been settled") are general Pork Barrel provision, i.e., the 1994 CDF Article, was resolved by the
procedural law principles which both deal with the effects of previous Court. To properly understand its context, petitioners‘ posturing was
but factually similar dispositions to subsequent cases. For the cases at that "the power given to the Members of Congress to propose and
bar, the Court examines the applicability of these principles in relation identify projects and activities to be funded by the CDF is an
to its prior rulings in Philconsa and LAMP. encroachment by the legislature on executive power, since said
power in an appropriation act is in implementation of the law" and
The focal point of res judicata is the judgment. The principle states that that "the proposal and identification of the projects do not involve the
a judgment on the merits in a previous case rendered by a court of making of laws or the repeal and amendment thereof, the only
competent jurisdiction would bind a subsequent case if, between the function given to the Congress by the Constitution."154 In deference to
first and second actions, there exists an identity of parties, of subject the foregoing submissions, the Court reached the following main
matter, and of causes of action.151 This required identity is not, conclusions: one, under the Constitution, the power of appropriation,
however, attendant hereto since Philconsa and LAMP, respectively or the "power of the purse," belongs to Congress; two, the power of
involved constitutional challenges against the 1994 CDF Article and appropriation carries with it the power to specify the project or activity
2004 PDAF Article, whereas the cases at bar call for a broader to be funded under the appropriation law and it can be detailed and
constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling as broad as Congress wants it to be; and, three, the proposals and
in LAMP is essentially a dismissal based on a procedural technicality – identifications made by Members of Congress are merely
and, thus, hardly a judgment on the merits – in that petitioners therein recommendatory. At once, it is apparent that the Philconsa resolution
failed to present any "convincing proof x x x showing that, indeed, was a limited response to a separation of powers problem, specifically
there were direct releases of funds to the Members of Congress, who on the propriety of conferring post-enactment identification authority
actually spend them according to their sole discretion" or "pertinent to Members of Congress. On the contrary, the present cases call for a
evidentiary support to demonstrate the illegal misuse of PDAF in the more holistic examination of (a) the inter-relation between the CDF
form of kickbacks and has become a common exercise of and PDAF Articles with each other, formative as they are of the entire
unscrupulous Members of Congress." As such, the Court up held, in "Pork Barrel System" as well as (b) the intra-relation of post-enactment
view of the presumption of constitutionality accorded to every law, measures contained within a particular CDF or PDAF Article, including
the 2004 PDAF Article, and saw "no need to review or reverse the not only those related to the area of project identification but also to
standing pronouncements in the said case." Hence, for the foregoing the areas of fund release and realignment. The complexity of the
reasons, the res judicata principle, insofar as the Philconsa and LAMP issues and the broader legal analyses herein warranted may be,
cases are concerned, cannot apply. therefore, considered as a powerful countervailing reason against a
wholesale application of the stare decisis principle.
On the other hand, the focal point of stare decisis is the doctrine
created. The principle, entrenched under Article 8152 of the Civil Code, In addition, the Court observes that the Philconsa ruling was actually
evokes the general rule that, for the sake of certainty, a conclusion riddled with inherent constitutional inconsistencies which similarly
reached in one case should be doctrinally applied to those that follow countervail against a full resort to stare decisis. As may be deduced
if the facts are substantially the same, even though the parties may be from the main conclusions of the case, Philconsa‘s fundamental
different. It proceeds from the first principle of justice that, absent any premise in allowing Members of Congress to propose and identify of
51

projects would be that the said identification authority is but an Pork Barrel," and "Presidential Pork Barrel" as they are essential to the
aspect of the power of appropriation which has been constitutionally ensuing discourse.
lodged in Congress. From this premise, the contradictions may be
easily seen. If the authority to identify projects is an aspect of Petitioners define the term "Pork Barrel System" as the "collusion
appropriation and the power of appropriation is a form of legislative between the Legislative and Executive branches of government to
power thereby lodged in Congress, then it follows that: (a) it is accumulate lump-sum public funds in their offices with unchecked
Congress which should exercise such authority, and not its individual discretionary powers to determine its distribution as political
Members; (b) such authority must be exercised within the prescribed largesse."156 They assert that the following elements make up the Pork
procedure of law passage and, hence, should not be exercised after Barrel System: (a) lump-sum funds are allocated through the
the GAA has already been passed; and (c) such authority, as appropriations process to an individual officer; (b) the officer is given
embodied in the GAA, has the force of law and, hence, cannot be sole and broad discretion in determining how the funds will be used or
merely recommendatory. Justice Vitug‘s Concurring Opinion in the expended; (c) the guidelines on how to spend or use the funds in the
same case sums up the Philconsa quandary in this wise: "Neither would appropriation are either vague, overbroad or inexistent; and (d)
it be objectionable for Congress, by law, to appropriate funds for such projects funded are intended to benefit a definite constituency in a
specific projects as it may be minded; to give that authority, however, particular part of the country and to help the political careers of the
to the individual members of Congress in whatever guise, I am afraid, disbursing official by yielding rich patronage benefits.157 They further
would be constitutionally impermissible." As the Court now largely state that the Pork Barrel System is comprised of two (2) kinds of
benefits from hindsight and current findings on the matter, among discretionary public funds: first, the Congressional (or Legislative) Pork
others, the CoA Report, the Court must partially abandon its previous Barrel, currently known as the PDAF;158 and, second, the Presidential
ruling in Philconsa insofar as it validated the post-enactment (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD
identification authority of Members of Congress on the guise that the 910 and the Presidential Social Fund under PD 1869, as amended by
same was merely recommendatory. This postulate raises serious PD 1993.159
constitutional inconsistencies which cannot be simply excused on the
ground that such mechanism is "imaginative as it is innovative." Considering petitioners‘ submission and in reference to its local
Moreover, it must be pointed out that the recent case of Abakada concept and legal history, the Court defines the Pork Barrel System as
Guro Party List v. Purisima155(Abakada) has effectively overturned the collective body of rules and practices that govern the manner by
Philconsa‘s allowance of post-enactment legislator participation in which lump-sum, discretionary funds, primarily intended for local
view of the separation of powers principle. These constitutional projects, are utilized through the respective participations of the
inconsistencies and the Abakada rule will be discussed in greater Legislative and Executive branches of government, including its
detail in the ensuing section of this Decision. members. The Pork Barrel System involves two (2) kinds of lump-sum
discretionary funds:
As for LAMP, suffice it to restate that the said case was dismissed on a
procedural technicality and, hence, has not set any controlling First, there is the Congressional Pork Barrel which is herein defined as a
doctrine susceptible of current application to the substantive issues in kind of lump-sum, discretionary fund wherein legislators, either
these cases. In fine, stare decisis would not apply. individually or collectively organized into committees, are able to
effectively control certain aspects of the fund’s utilization through
II. Substantive Issues. various post-enactment measures and/or practices. In particular,
petitioners consider the PDAF, as it appears under the 2013 GAA, as
A. Definition of Terms. Congressional Pork Barrel since it is, inter alia, a post-enactment
measure that allows individual legislators to wield a collective
Before the Court proceeds to resolve the substantive issues of these power;160 and
cases, it must first define the terms "Pork Barrel System," "Congressional
52

Second, there is the Presidential Pork Barrel which is herein defined as Broadly speaking, there is a violation of the separation of powers
a kind of lump-sum, discretionary fund which allows the President to principle when one branch of government unduly encroaches on the
determine the manner of its utilization. For reasons earlier stated,161 the domain of another. US Supreme Court decisions instruct that the
Court shall delimit the use of such term to refer only to the Malampaya principle of separation of powers may be violated in two (2) ways:
Funds and the Presidential Social Fund. firstly, "one branch may interfere impermissibly with the other’s
performance of its constitutionally assigned function";171 and
With these definitions in mind, the Court shall now proceed to discuss "alternatively, the doctrine may be violated when one branch
the substantive issues of these cases. assumes a function that more properly is entrusted to another."172 In
other words, there is a violation of the principle when there is
B. Substantive Issues on the Congressional Pork Barrel. impermissible (a) interference with and/or (b) assumption of another
department‘s functions.
1. Separation of Powers.
The enforcement of the national budget, as primarily contained in the
GAA, is indisputably a function both constitutionally assigned and
a. Statement of Principle.
properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained
The principle of separation of powers refers to the constitutional
that the phase of budget execution "covers the various operational
demarcation of the three fundamental powers of government. In the
aspects of budgeting" and accordingly includes "the evaluation of
celebrated words of Justice Laurel in Angara v. Electoral
work and financial plans for individual activities," the "regulation and
Commission,162 it means that the "Constitution has blocked out with
release of funds" as well as all "other related activities" that comprise
deft strokes and in bold lines, allotment of power to the executive, the
the budget execution cycle.174 This is rooted in the principle that the
legislative and the judicial departments of the government."163 To the
allocation of power in the three principal branches of government is a
legislative branch of government, through Congress,164belongs the
grant of all powers inherent in them.175 Thus, unless the Constitution
power to make laws; to the executive branch of government, through
provides otherwise, the Executive department should exclusively
the President,165 belongs the power to enforce laws; and to the judicial
exercise all roles and prerogatives which go into the implementation
branch of government, through the Court,166 belongs the power to
of the national budget as provided under the GAA as well as any
interpret laws. Because the three great powers have been, by
other appropriation law.
constitutional design, ordained in this respect, "each department of
the government has exclusive cognizance of matters within its
In view of the foregoing, the Legislative branch of government, much
jurisdiction, and is supreme within its own sphere."167 Thus, "the
more any of its members, should not cross over the field of
legislature has no authority to execute or construe the law, the
implementing the national budget since, as earlier stated, the same is
executive has no authority to make or construe the law, and the
properly the domain of the Executive. Again, in Guingona, Jr., the
judiciary has no power to make or execute the law."168 The principle of
Court stated that "Congress enters the picture when it deliberates or
separation of powers and its concepts of autonomy and
acts on the budget proposals of the President. Thereafter, Congress,
independence stem from the notion that the powers of government
"in the exercise of its own judgment and wisdom, formulates an
must be divided to avoid concentration of these powers in any one
appropriation act precisely following the process established by the
branch; the division, it is hoped, would avoid any single branch from
Constitution, which specifies that no money may be paid from the
lording its power over the other branches or the citizenry.169 To achieve
Treasury except in accordance with an appropriation made by law."
this purpose, the divided power must be wielded by co-equal
Upon approval and passage of the GAA, Congress‘ law -making role
branches of government that are equally capable of independent
necessarily comes to an end and from there the Executive‘s role of
action in exercising their respective mandates. Lack of independence
implementing the national budget begins. So as not to blur the
would result in the inability of one branch of government to check the
arbitrary or self-interest assertions of another or others.170
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constitutional boundaries between them, Congress must "not concern responsibilities between the political branches" as it is designed to
it self with details for implementation by the Executive."176 allow individual legislators to interfere "way past the time it should
have ceased" or, particularly, "after the GAA is passed."179 They state
The foregoing cardinal postulates were definitively enunciated in that the findings and recommendations in the CoA Report provide "an
Abakada where the Court held that "from the moment the law illustration of how absolute and definitive the power of legislators wield
becomes effective, any provision of law that empowers Congress or over project implementation in complete violation of the
any of its members to play any role in the implementation or constitutional principle of separation of powers."180 Further, they point
enforcement of the law violates the principle of separation of powers out that the Court in the Philconsa case only allowed the CDF to exist
and is thus unconstitutional."177 It must be clarified, however, that since on the condition that individual legislators limited their role to
the restriction only pertains to "any role in the implementation or recommending projects and not if they actually dictate their
enforcement of the law," Congress may still exercise its oversight implementation.181
function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘ role For their part, respondents counter that the separations of powers
must be confined to mere oversight. Any post-enactment-measure principle has not been violated since the President maintains "ultimate
allowing legislator participation beyond oversight is bereft of any authority to control the execution of the GAAǁ and that he "retains the
constitutional basis and hence, tantamount to impermissible final discretion to reject" the legislators‘ proposals.182 They maintain
interference and/or assumption of executive functions. As the Court that the Court, in Philconsa, "upheld the constitutionality of the power
ruled in Abakada:178 of members of Congress to propose and identify projects so long as
such proposal and identification are recommendatory."183 As such,
Any post-enactment congressional measure x x x should be limited to they claim that "everything in the Special Provisions [of the 2013 PDAF
scrutiny and investigation.1âwphi1 In particular, congressional Article follows the Philconsa framework, and hence, remains
oversight must be confined to the following: constitutional."184

(1) scrutiny based primarily on Congress‘ power of The Court rules in favor of petitioners.
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to As may be observed from its legal history, the defining feature of all
appear before and be heard by either of its Houses on any forms of Congressional Pork Barrel would be the authority of legislators
matter pertaining to their departments and its power of to participate in the post-enactment phases of project
confirmation; and implementation.

(2) investigation and monitoring of the implementation of laws At its core, legislators – may it be through project lists,185 prior
pursuant to the power of Congress to conduct inquiries in aid consultations186 or program menus187 – have been consistently
of legislation. accorded post-enactment authority to identify the projects they
desire to be funded through various Congressional Pork Barrel
Any action or step beyond that will undermine the separation of allocations. Under the 2013 PDAF Article, the statutory authority of
powers guaranteed by the Constitution. (Emphases supplied) legislators to identify projects post-GAA may be construed from the
import of Special Provisions 1 to 3 as well as the second paragraph of
B. Application. Special Provision 4. To elucidate, Special Provision 1 embodies the
program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the
In these cases, petitioners submit that the Congressional Pork Barrel –
identified project falls under a general program listed in the said
among others, the 2013 PDAF Article – "wrecks the assignment of
menu. Relatedly, Special Provision 2 provides that the implementing
54

agencies shall, within 90 days from the GAA is passed, submit to related to functions of congressional oversight and, hence, allow
Congress a more detailed priority list, standard or design prepared legislators to intervene and/or assume duties that properly belong to
and submitted by implementing agencies from which the legislator the sphere of budget execution. Indeed, by virtue of the foregoing,
may make his choice. The same provision further authorizes legislators legislators have been, in one form or another, authorized to
to identify PDAF projects outside his district for as long as the participate in – as Guingona, Jr. puts it – "the various operational
representative of the district concerned concurs in writing. Meanwhile, aspects of budgeting," including "the evaluation of work and financial
Special Provision 3 clarifies that PDAF projects refer to "projects to be plans for individual activities" and the "regulation and release of funds"
identified by legislators"188 and thereunder provides the allocation limit in violation of the separation of powers principle. The fundamental
for the total amount of projects identified by each legislator. Finally, rule, as categorically articulated in Abakada, cannot be overstated –
paragraph 2 of Special Provision 4 requires that any modification and from the moment the law becomes effective, any provision of law
revision of the project identification "shall be submitted to the House that empowers Congress or any of its members to play any role in the
Committee on Appropriations and the Senate Committee on Finance implementation or enforcement of the law violates the principle of
for favorable endorsement to the DBM or the implementing agency, separation of powers and is thus unconstitutional.191 That the said
as the case may be." From the foregoing special provisions, it cannot authority is treated as merely recommendatory in nature does not
be seriously doubted that legislators have been accorded post- alter its unconstitutional tenor since the prohibition, to repeat, covers
enactment authority to identify PDAF projects. any role in the implementation or enforcement of the law. Towards this
end, the Court must therefore abandon its ruling in Philconsa which
Aside from the area of project identification, legislators have also sanctioned the conduct of legislator identification on the guise that
been accorded post-enactment authority in the areas of fund release the same is merely recommendatory and, as such, respondents‘
and realignment. Under the 2013 PDAF Article, the statutory authority reliance on the same falters altogether.
of legislators to participate in the area of fund release through
congressional committees is contained in Special Provision 5 which Besides, it must be pointed out that respondents have nonetheless
explicitly states that "all request for release of funds shall be supported failed to substantiate their position that the identification authority of
by the documents prescribed under Special Provision No. 1 and legislators is only of recommendatory import. Quite the contrary,
favorably endorsed by House Committee on Appropriations and the respondents – through the statements of the Solicitor General during
Senate Committee on Finance, as the case may be"; while their the Oral Arguments – have admitted that the identification of the
statutory authority to participate in the area of fund realignment is legislator constitutes a mandatory requirement before his PDAF can
contained in: first , paragraph 2, Special Provision 4189 which explicitly be tapped as a funding source, thereby highlighting the
state s, among others, that "any realignment of funds shall be indispensability of the said act to the entire budget execution
submitted to the House Committee on Appropriations and the Senate process:192
Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may beǁ ; and, second , Justice Bernabe: Now, without the individual legislator’s identification
paragraph 1, also of Special Provision 4 which authorizes the of the project, can the PDAF of the legislator be utilized?
"Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and Highways, Solicitor General Jardeleza: No, Your Honor.
Social Welfare and Development and Trade and Industry190 x x x to
approve realignment from one project/scope to another within the
Justice Bernabe: It cannot?
allotment received from this Fund, subject to among others (iii) the
request is with the concurrence of the legislator concerned."
Solicitor General Jardeleza: It cannot… (interrupted)
Clearly, these post-enactment measures which govern the areas of
project identification, fund release and fund realignment are not
55

Justice Bernabe: So meaning you should have the identification of the proper phases of budget execution, must be deemed as acts of
project by the individual legislator? grave abuse of discretion amounting to lack or excess of jurisdiction
and, hence, accorded the same unconstitutional treatment. That
Solicitor General Jardeleza: Yes, Your Honor. such informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially disputed
xxxx here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief
Justice Sereno) during the Oral Arguments of these cases:193
Chief Justice Sereno:
Justice Bernabe: In short, the act of identification is mandatory?

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

Sec. 27. x x x. The justification for the President‘s item-veto power rests on a variety of
policy goals such as to prevent log-rolling legislation,207 impose fiscal
xxxx restrictions on the legislature, as well as to fortify the executive
branch‘s role in the budgetary process.208 In Immigration and
(2) The President shall have the power to veto any particular item or Naturalization Service v. Chadha, the US Supreme Court characterized
items in an appropriation, revenue, or tariff bill, but the veto shall not the President‘s item-power as "a salutary check upon the legislative
affect the item or items to which he does not object. body, calculated to guard the community against the effects of
factions, precipitancy, or of any impulse unfriendly to the public good,
which may happen to influence a majority of that body"; phrased
The presentment of appropriation, revenue or tariff bills to the
differently, it is meant to "increase the chances in favor of the
President, wherein he may exercise his power of item-veto, forms part
community against the passing of bad laws, through haste,
of the "single, finely wrought and exhaustively considered, procedures"
inadvertence, or design."209
for law-passage as specified under the Constitution.204 As stated in
Abakada, the final step in the law-making process is the "submission of
the bill to the President for approval. Once approved, it takes effect For the President to exercise his item-veto power, it necessarily follows
as law after the required publication."205 that there exists a proper "item" which may be the object of the veto.
An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the
Elaborating on the President‘s item-veto power and its relevance as a
appropriation or of the bill." In the case of Bengzon v. Secretary of
check on the legislature, the Court, in Bengzon, explained that:206
Justice of the Philippine Islands,210 the US Supreme Court characterized
an item of appropriation as follows:
The former Organic Act and the present Constitution of the Philippines
make the Chief Executive an integral part of the law-making power.
An item of an appropriation bill obviously means an item which, in
His disapproval of a bill, commonly known as a veto, is essentially a
itself, is a specific appropriation of money, not some general provision
legislative act. The questions presented to the mind of the Chief
of law which happens to be put into an appropriation bill. (Emphases
Executive are precisely the same as those the legislature must
supplied)
determine in passing a bill, except that his will be a broader point of
view.
On this premise, it may be concluded that an appropriation bill, to
ensure that the President may be able to exercise his power of item
The Constitution is a limitation upon the power of the legislative
veto, must contain "specific appropriations of money" and not only
department of the government, but in this respect it is a grant of
"general provisions" which provide for parameters of appropriation.
power to the executive department. The Legislature has the
affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will Further, it is significant to point out that an item of appropriation must
of the Legislature. It follows that the Chief Executive must find his be an item characterized by singular correspondence – meaning an
authority in the Constitution. But in exercising that authority he may not allocation of a specified singular amount for a specified singular
be confined to rules of strict construction or hampered by the unwise purpose, otherwise known as a "line-item."211 This treatment not only
interference of the judiciary. The courts will indulge every intendment allows the item to be consistent with its definition as a "specific
in favor of the constitutionality of a veto in the same manner as they appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the
existing Calamity Fund, Contingent Fund and the Intelligence Fund,
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being appropriations which state a specified amount for a specific the appropriation. Since the foregoing determinations constitute the
purpose, would then be considered as "line- item" appropriations integral aspects of the power to appropriate, the implementing
which are rightfully subject to item veto. Likewise, it must be observed authority would, in effect, be exercising legislative prerogatives in
that an appropriation may be validly apportioned into component violation of the principle of non-delegability.
percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such b. Application.
component to be considered as a proper line-item. Moreover, as
Justice Carpio correctly pointed out, a valid appropriation may even In these cases, petitioners claim that "in the current x x x system where
have several related purposes that are by accounting and budgeting the PDAF is a lump-sum appropriation, the legislator‘s identification of
practice considered as one purpose, e.g., MOOE (maintenance and the projects after the passage of the GAA denies the President the
other operating expenses), in which case the related purposes shall chance to veto that item later on."212 Accordingly, they submit that
be deemed sufficiently specific for the exercise of the President‘s item the "item veto power of the President mandates that appropriations
veto power. Finally, special purpose funds and discretionary funds bills adopt line-item budgeting" and that "Congress cannot choose a
would equally square with the constitutional mechanism of item-veto mode of budgeting which effectively renders the constitutionally-
for as long as they follow the rule on singular correspondence as given power of the President useless."213
herein discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that the
On the other hand, respondents maintain that the text of the
"special appropriations bill shall specify the purpose for which it is
Constitution envisions a process which is intended to meet the
intended, and shall be supported by funds actually available as
demands of a modernizing economy and, as such, lump-sum
certified by the National Treasurer, or t o be raised by a corresponding
appropriations are essential to financially address situations which are
revenue proposal therein." Meanwhile, with respect to discretionary
barely foreseen when a GAA is enacted. They argue that the decision
funds, Section 2 5(6), Article VI of the 1987 Constitution requires that
of the Congress to create some lump-sum appropriations is
said funds "shall be disbursed only for public purposes to be supported
constitutionally allowed and textually-grounded.214
by appropriate vouchers and subject to such guidelines as may be
prescribed by law."
The Court agrees with petitioners.
In contrast, what beckons constitutional infirmity are appropriations
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears
which merely provide for a singular lump-sum amount to be tapped
as a collective allocation limit since the said amount would be further
as a source of funding for multiple purposes. Since such appropriation
divided among individual legislators who would then receive personal
type necessitates the further determination of both the actual amount
lump-sum allocations and could, after the GAA is passed, effectively
to be expended and the actual purpose of the appropriation which
appropriate PDAF funds based on their own discretion. As these
must still be chosen from the multiple purposes stated in the law, it
intermediate appropriations are made by legislators only after the
cannot be said that the appropriation law already indicates a
GAA is passed and hence, outside of the law, it necessarily means
"specific appropriation of moneyǁ and hence, without a proper line-
that the actual items of PDAF appropriation would not have been
item which the President may veto. As a practical result, the President
written into the General Appropriations Bill and thus effectuated
would then be faced with the predicament of either vetoing the
without veto consideration. This kind of lump-sum/post-enactment
entire appropriation if he finds some of its purposes wasteful or
legislative identification budgeting system fosters the creation of a
undesirable, or approving the entire appropriation so as not to hinder
budget within a budget" which subverts the prescribed procedure of
some of its legitimate purposes. Finally, it may not be amiss to state
presentment and consequently impairs the President‘s power of item
that such arrangement also raises non-delegability issues considering
veto. As petitioners aptly point out, the above-described system forces
that the implementing authority would still have to determine, again,
the President to decide between (a) accepting the entire ₱24.79
both the actual amount to be expended and the actual purpose of
Billion PDAF allocation without knowing the specific projects of the
59

legislators, which may or may not be consistent with his national an effect on re- election as "the PDAF excels in self-perpetuation of
agenda and (b) rejecting the whole PDAF to the detriment of all other elective officials." Finally, they add that the "PDAF impairs the power of
legislators with legitimate projects.215 impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘"220
Moreover, even without its post-enactment legislative identification
feature, the 2013 PDAF Article would remain constitutionally flawed The Court agrees in part.
since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum The aphorism forged under Section 1, Article XI of the 1987
amount of ₱24.79 Billion would be treated as a mere funding source Constitution, which states that "public office is a public trust," is an
allotted for multiple purposes of spending, i.e., scholarships, medical overarching reminder that every instrumentality of government should
missions, assistance to indigents, preservation of historical materials, exercise their official functions only in accordance with the principles
construction of roads, flood control, etc. This setup connotes that the of the Constitution which embodies the parameters of the people‘s
appropriation law leaves the actual amounts and purposes of the trust. The notion of a public trust connotes accountability,221 hence,
appropriation for further determination and, therefore, does not the various mechanisms in the Constitution which are designed to
readily indicate a discernible item which may be subject to the exact accountability from public officers.
President‘s power of item veto.
Among others, an accountability mechanism with which the proper
In fact, on the accountability side, the same lump-sum budgeting expenditure of public funds may be checked is the power of
scheme has, as the CoA Chairperson relays, "limited state auditors congressional oversight. As mentioned in Abakada,222 congressional
from obtaining relevant data and information that would aid in more oversight may be performed either through: (a) scrutiny based
stringently auditing the utilization of said Funds."216 Accordingly, she primarily on Congress‘ power of appropriation and the budget
recommends the adoption of a "line by line budget or amount per hearings conducted in connection with it, its power to ask heads of
proposed program, activity or project, and per implementing departments to appear before and be heard by either of its Houses
agency."217 on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the
Hence, in view of the reasons above-stated, the Court finds the 2013 implementation of laws pursuant to the power of Congress to conduct
PDAF Article, as well as all Congressional Pork Barrel Laws of similar inquiries in aid of legislation.224
operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future The Court agrees with petitioners that certain features embedded in
contingencies cannot be an excuse to defeat what the Constitution some forms of Congressional Pork Barrel, among others the 2013 PDAF
requires. Clearly, the first and essential truth of the matter is that Article, has an effect on congressional oversight. The fact that
unconstitutional means do not justify even commendable ends.218 individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become
c. Accountability. disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the
Petitioners further relate that the system under which various forms of conduct of oversight would be tainted as said legislators, who are
Congressional Pork Barrel operate defies public accountability as it vested with post-enactment authority, would, in effect, be checking
renders Congress incapable of checking itself or its Members. In on activities in which they themselves participate. Also, it must be
particular, they point out that the Congressional Pork Barrel "gives pointed out that this very same concept of post-enactment
each legislator a direct, financial interest in the smooth, speedy authorization runs afoul of Section 14, Article VI of the 1987
passing of the yearly budget" which turns them "from fiscalizers" into Constitution which provides that:
"financially-interested partners."219 They also claim that the system has
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Sec. 14. No Senator or Member of the House of Representatives may One of the petitioners submits that the Pork Barrel System enables
personally appear as counsel before any court of justice or before the politicians who are members of political dynasties to accumulate
Electoral Tribunals, or quasi-judicial and other administrative bodies. funds to perpetuate themselves in power, in contravention of Section
Neither shall he, directly or indirectly, be interested financially in any 26, Article II of the 1987 Constitution225 which states that:
contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency, or instrumentality thereof, Sec. 26. The State shall guarantee equal access to opportunities for
including any government-owned or controlled corporation, or its public service, and prohibit political dynasties as may be defined by
subsidiary, during his term of office. He shall not intervene in any law. (Emphasis and underscoring supplied)
matter before any office of the Government for his pecuniary benefit
or where he may be called upon to act on account of his office. At the outset, suffice it to state that the foregoing provision is
(Emphasis supplied) considered as not self-executing due to the qualifying phrase "as may
be defined by law." In this respect, said provision does not, by and of
Clearly, allowing legislators to intervene in the various phases of itself, provide a judicially enforceable constitutional right but merely
project implementation – a matter before another office of specifies guideline for legislative or executive action.226 Therefore,
government – renders them susceptible to taking undue advantage since there appears to be no standing law which crystallizes the policy
of their own office. on political dynasties for enforcement, the Court must defer from
ruling on this issue.
The Court, however, cannot completely agree that the same post-
enactment authority and/or the individual legislator‘s control of his In any event, the Court finds the above-stated argument on this score
PDAF per se would allow him to perpetuate himself in office. Indeed, to be largely speculative since it has not been properly demonstrated
while the Congressional Pork Barrel and a legislator‘s use thereof may how the Pork Barrel System would be able to propagate political
be linked to this area of interest, the use of his PDAF for re-election dynasties.
purposes is a matter which must be analyzed based on particular
facts and on a case-to-case basis. 5. Local Autonomy.

Finally, while the Court accounts for the possibility that the close The State‘s policy on local autonomy is principally stated in Section 25,
operational proximity between legislators and the Executive Article II and Sections 2 and 3, Article X of the 1987 Constitution which
department, through the former‘s post-enactment participation, may read as follows:
affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel
ARTICLE II
System‘s intrinsic constitutionality. As such, it is an improper subject of
judicial assessment.
Sec. 25. The State shall ensure the autonomy of local
governments.
In sum, insofar as its post-enactment features dilute congressional
oversight and violate Section 14, Article VI of the 1987 Constitution,
ARTICLE X
thus impairing public accountability, the 2013 PDAF Article and other
forms of Congressional Pork Barrel of similar nature are deemed as
unconstitutional. Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.
4. Political Dynasties.
Sec. 3. The Congress shall enact a local government code
which shall provide for a more responsive and accountable
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local government structure instituted through a system of explained by the Court in Philippine Gamefowl Commission v.
decentralization with effective mechanisms of recall, initiative, Intermediate Appellate Court:228
and referendum, allocate among the different local
government units their powers, responsibilities, and resources, This is as good an occasion as any to stress the commitment of
and provide for the qualifications, election, appointment and the Constitution to the policy of local autonomy which is
removal, term, salaries, powers and functions and duties of intended to provide the needed impetus and encouragement
local officials, and all other matters relating to the organization to the development of our local political subdivisions as "self -
and operation of the local units. reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one
Pursuant thereto, Congress enacted RA 7160,227 otherwise derives its strength." The vitalization of local governments will
known as the "Local Government Code of 1991" (LGC), enable their inhabitants to fully exploit their resources and
wherein the policy on local autonomy had been more more important, imbue them with a deepened sense of
specifically explicated as follows: involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the
Sec. 2. Declaration of Policy. – (a) It is hereby declared the national government in purely local affairs which are best
policy of the State that the territorial and political subdivisions resolved by the officials and inhabitants of such political units.
of the State shall enjoy genuine and meaningful local The decision we reach today conforms not only to the letter of
autonomy to enable them to attain their fullest development the pertinent laws but also to the spirit of the
as self-reliant communities and make them more effective Constitution.229 (Emphases and underscoring supplied)
partners in the attainment of national goals. Toward this end,
the State shall provide for a more responsive and accountable In the cases at bar, petitioners contend that the Congressional Pork
local government structure instituted through a system of Barrel goes against the constitutional principles on local autonomy
decentralization whereby local government units shall be since it allows district representatives, who are national officers, to
given more powers, authority, responsibilities, and resources. substitute their judgments in utilizing public funds for local
The process of decentralization shall proceed from the development.230 The Court agrees with petitioners.
National Government to the local government units.
Philconsa described the 1994 CDF as an attempt "to make equal the
xxxx unequal" and that "it is also a recognition that individual members of
Congress, far more than the President and their congressional
(c) It is likewise the policy of the State to require all national colleagues, are likely to be knowledgeable about the needs of their
agencies and offices to conduct periodic consultations with respective constituents and the priority to be given each
appropriate local government units, nongovernmental and project."231 Drawing strength from this pronouncement, previous
people‘s organizations, and other concerned sectors of the legislators justified its existence by stating that "the relatively small
community before any project or program is implemented in projects implemented under the Congressional Pork Barrel
their respective jurisdictions. (Emphases and underscoring complement and link the national development goals to the
supplied) countryside and grassroots as well as to depressed areas which are
overlooked by central agencies which are preoccupied with mega-
The above-quoted provisions of the Constitution and the LGC projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of
reveal the policy of the State to empower local government PDAF and budgetary reforms, President Aquino mentioned that the
units (LGUs) to develop and ultimately, become self-sustaining Congressional Pork Barrel was originally established for a worthy goal,
and effective contributors to the national economy. As which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford.233
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Notwithstanding these declarations, the Court, however, finds an Thus, insofar as individual legislators are authorized to intervene in
inherent defect in the system which actually belies the avowed purely local matters and thereby subvert genuine local autonomy, the
intention of "making equal the unequal." In particular, the Court 2013 PDAF Article as well as all other similar forms of Congressional Pork
observes that the gauge of PDAF and CDF allocation/division is based Barrel is deemed unconstitutional.
solely on the fact of office, without taking into account the specific
interests and peculiarities of the district the legislator represents. In this With this final issue on the Congressional Pork Barrel resolved, the Court
regard, the allocation/division limits are clearly not based on genuine now turns to the substantive issues involving the Presidential Pork Barrel.
parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district C. Substantive Issues on the Presidential Pork Barrel.
representative of a highly-urbanized metropolis gets the same amount
of funding as a district representative of a far-flung rural province
1. Validity of Appropriation.
which would be relatively "underdeveloped" compared to the former.
To add, what rouses graver scrutiny is that even Senators and Party-List
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of
Representatives – and in some years, even the Vice-President – who
PD1869 (now, amended by PD 1993), which respectively provide for
do not represent any locality, receive funding from the Congressional
the Malampaya Funds and the Presidential Social Fund, as invalid
Pork Barrel as well. These certainly are anathema to the Congressional
appropriations laws since they do not have the "primary and specific"
Pork Barrel‘s original intent which is "to make equal the unequal."
purpose of authorizing the release of public funds from the National
Ultimately, the PDAF and CDF had become personal funds under the
Treasury. Petitioners submit that Section 8 of PD 910 is not an
effective control of each legislator and given unto them on the sole
appropriation law since the "primary and specificǁ purpose of PD 910 is
account of their office.
the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto.237 In similar regard,
The Court also observes that this concept of legislator control
petitioners argue that Section 12 of PD 1869 is neither a valid
underlying the CDF and PDAF conflicts with the functions of the various
appropriations law since the allocation of the Presidential Social Fund
Local Development Councils (LDCs) which are already legally
is merely incidental to the "primary and specific" purpose of PD 1869
mandated to "assist the corresponding sanggunian in setting the
which is the amendment of the Franchise and Powers of
direction of economic and social development, and coordinating
PAGCOR.238 In view of the foregoing, petitioners suppose that such
development efforts within its territorial jurisdiction."234 Considering that
funds are being used without any valid law allowing for their proper
LDCs are instrumentalities whose functions are essentially geared
appropriation in violation of Section 29(1), Article VI of the 1987
towards managing local affairs,235 their programs, policies and
Constitution which states that: "No money shall be paid out of the
resolutions should not be overridden nor duplicated by individual
Treasury except in pursuance of an appropriation made by law."239
legislators, who are national officers that have no law-making
authority except only when acting as a body. The undermining effect
The Court disagrees.
on local autonomy caused by the post-enactment authority
conferred to the latter was succinctly put by petitioners in the
following wise:236 "An appropriation made by lawǁ under the contemplation of Section
29(1), Article VI of the 1987 Constitution exists when a provision of law
(a) sets apart a determinate or determinable240 amount of money and
With PDAF, a Congressman can simply bypass the local development
(b) allocates the same for a particular public purpose. These two
council and initiate projects on his own, and even take sole credit for
minimum designations of amount and purpose stem from the very
its execution. Indeed, this type of personality-driven project
definition of the word "appropriation," which means "to allot, assign,
identification has not only contributed little to the overall development
set apart or apply to a particular use or purpose," and hence, if written
of the district, but has even contributed to "further weakening
into the law, demonstrate that the legislative intent to appropriate
infrastructure planning and coordination efforts of the government."
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exists. As the Constitution "does not provide or prescribe any particular the legislative intent to appropriate becomes apparent and, hence,
form of words or religious recitals in which an authorization or already sufficient to satisfy the requirement of an "appropriation made
appropriation by Congress shall be made, except that it be ‘made by by law" under contemplation of the Constitution.
law,‘" an appropriation law may – according to Philconsa – be
"detailed and as broad as Congress wants it to be" for as long as the Section 8 of PD 910 pertinently provides:
intent to appropriate may be gleaned from the same. As held in the
case of Guingona, Jr.:241 Section 8. Appropriations. x x x

There is no provision in our Constitution that provides or prescribes any All fees, revenues and receipts of the Board from any and all sources
particular form of words or religious recitals in which an authorization including receipts from service contracts and agreements such as
or appropriation by Congress shall be made, except that it be "made application and processing fees, signature bonus, discovery bonus,
by law," such as precisely the authorization or appropriation under the production bonus; all money collected from concessionaires,
questioned presidential decrees. In other words, in terms of time representing unspent work obligations, fines and penalties under the
horizons, an appropriation may be made impliedly (as by past but Petroleum Act of 1949; as well as the government share representing
subsisting legislations) as well as expressly for the current fiscal year (as royalties, rentals, production share on service contracts and similar
by enactment of laws by the present Congress), just as said payments on the exploration, development and exploitation of
appropriation may be made in general as well as in specific terms. The energy resources, shall form part of a Special Fund to be used to
Congressional authorization may be embodied in annual laws, such as finance energy resource development and exploitation programs and
a general appropriations act or in special provisions of laws of general projects of the government and for such other purposes as may be
or special application which appropriate public funds for specific hereafter directed by the President. (Emphases supplied)
public purposes, such as the questioned decrees. An appropriation
measure is sufficient if the legislative intention clearly and certainly
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
appears from the language employed (In re Continuing
Appropriations, 32 P. 272), whether in the past or in the present.
Sec. 12. Special Condition of Franchise. — After deducting five (5%)
(Emphases and underscoring supplied)
percent as Franchise Tax, the Fifty (50%) percent share of the
Government in the aggregate gross earnings of the Corporation from
Likewise, as ruled by the US Supreme Court in State of Nevada v. La
this Franchise, or 60% if the aggregate gross earnings be less than
Grave:242
₱150,000,000.00 shall be set aside and shall accrue to the General
Fund to finance the priority infrastructure development projects and to
To constitute an appropriation there must be money placed in a fund finance the restoration of damaged or destroyed facilities due to
applicable to the designated purpose. The word appropriate means calamities, as may be directed and authorized by the Office of the
to allot, assign, set apart or apply to a particular use or purpose. An President of the Philippines. (Emphases supplied)
appropriation in the sense of the constitution means the setting apart
a portion of the public funds for a public purpose. No particular form
Analyzing the legal text vis-à-vis the above-mentioned principles, it
of words is necessary for the purpose, if the intention to appropriate is
may then be concluded that (a) Section 8 of PD 910, which creates a
plainly manifested. (Emphases supplied)
Special Fund comprised of "all fees, revenues, and receipts of the
Energy Development Board from any and all sources" (a determinable
Thus, based on the foregoing, the Court cannot sustain the argument amount) "to be used to finance energy resource development and
that the appropriation must be the "primary and specific" purpose of exploitation programs and projects of the government and for such
the law in order for a valid appropriation law to exist. To reiterate, if a other purposes as may be hereafter directed by the President" (a
legal provision designates a determinate or determinable amount of specified public purpose), and (b) Section 12 of PD 1869, as amended
money and allocates the same for a particular public purpose, then
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by PD 1993, which similarly sets aside, "after deducting five (5%) While the designation of a determinate or determinable amount for a
percent as Franchise Tax, the Fifty (50%) percent share of the particular public purpose is sufficient for a legal appropriation to exist,
Government in the aggregate gross earnings of PAGCOR, or 60%, if the appropriation law must contain adequate legislative guidelines if
the aggregate gross earnings be less than ₱150,000,000.00" (also a the same law delegates rule-making authority to the
determinable amount) "to finance the priority infrastructure Executive245 either for the purpose of (a) filling up the details of the law
development projects and x x x the restoration of damaged or for its enforcement, known as supplementary rule-making, or (b)
destroyed facilities due to calamities, as may be directed and ascertaining facts to bring the law into actual operation, referred to as
authorized by the Office of the President of the Philippines" (also a contingent rule-making.246 There are two (2) fundamental tests to
specified public purpose), are legal appropriations under Section ensure that the legislative guidelines for delegated rule-making are
29(1), Article VI of the 1987 Constitution. indeed adequate. The first test is called the "completeness test." Case
law states that a law is complete when it sets forth therein the policy to
In this relation, it is apropos to note that the 2013 PDAF Article cannot be executed, carried out, or implemented by the delegate. On the
be properly deemed as a legal appropriation under the said other hand, the second test is called the "sufficient standard test."
constitutional provision precisely because, as earlier stated, it contains Jurisprudence holds that a law lays down a sufficient standard when it
post-enactment measures which effectively create a system of provides adequate guidelines or limitations in the law to map out the
intermediate appropriations. These intermediate appropriations are boundaries of the delegate‘s authority and prevent the delegation
the actual appropriations meant for enforcement and since they are from running riot.247 To be sufficient, the standard must specify the limits
made by individual legislators after the GAA is passed, they occur of the delegate‘s authority, announce the legislative policy, and
outside the law. As such, the Court observes that the real identify the conditions under which it is to be implemented.248
appropriation made under the 2013 PDAF Article is not the ₱24.79
Billion allocated for the entire PDAF, but rather the post-enactment In view of the foregoing, the Court agrees with petitioners that the
determinations made by the individual legislators which are, to repeat, phrase "and for such other purposes as may be hereafter directed by
occurrences outside of the law. Irrefragably, the 2013 PDAF Article the President" under Section 8 of PD 910 constitutes an undue
does not constitute an "appropriation made by law" since it, in its delegation of legislative power insofar as it does not lay down a
truest sense, only authorizes individual legislators to appropriate in sufficient standard to adequately determine the limits of the
violation of the non-delegability principle as afore-discussed. President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the
2. Undue Delegation. President wide latitude to use the Malampaya Funds for any other
purpose he may direct and, in effect, allows him to unilaterally
On a related matter, petitioners contend that Section 8 of PD 910 appropriate public funds beyond the purview of the law. That the
constitutes an undue delegation of legislative power since the phrase subject phrase may be confined only to "energy resource
"and for such other purposes as may be hereafter directed by the development and exploitation programs and projects of the
President" gives the President "unbridled discretion to determine for government" under the principle of ejusdem generis, meaning that the
what purpose the funds will be used."243 Respondents, on the other general word or phrase is to be construed to include – or be restricted
hand, urged the Court to apply the principle of ejusdem generis to the to – things akin to, resembling, or of the same kind or class as those
same section and thus, construe the phrase "and for such other specifically mentioned,249 is belied by three (3) reasons: first, the
purposes as may be hereafter directed by the President" to refer only phrase "energy resource development and exploitation programs and
to other purposes related "to energy resource development and projects of the government" states a singular and general class and
exploitation programs and projects of the government."244 hence, cannot be treated as a statutory reference of specific things
from which the general phrase "for such other purposes" may be
limited; second, the said phrase also exhausts the class it represents,
The Court agrees with petitioners‘ submissions.
namely energy development programs of the government;250 and,
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third, the Executive department has, in fact, used the Malampaya follows: "the underlying framework of a system, especially public
Funds for non-energy related purposes under the subject phrase, services and facilities (such as highways, schools, bridges, sewers, and
thereby contradicting respondents‘ own position that it is limited only water-systems) needed to support commerce as well as economic
to "energy resource development and exploitation programs and and residential development."253 In fine, the phrase "to finance the
projects of the government."251 Thus, while Section 8 of PD 910 may priority infrastructure development projects" must be stricken down as
have passed the completeness test since the policy of energy unconstitutional since – similar to the above-assailed provision under
development is clearly deducible from its text, the phrase "and for Section 8 of PD 910 – it lies independently unfettered by any sufficient
such other purposes as may be hereafter directed by the President" standard of the delegating law. As they are severable, all other
under the same provision of law should nonetheless be stricken down provisions of Section 12 of PD 1869, as amended by PD 1993, remains
as unconstitutional as it lies independently unfettered by any sufficient legally effective and subsisting.
standard of the delegating law. This notwithstanding, it must be
underscored that the rest of Section 8, insofar as it allows for the use of D. Ancillary Prayers. 1.
the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
legally effective and subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but an assurance
Aside from seeking the Court to declare the Pork Barrel System
that the Malampaya Funds would be used – as it should be used –
unconstitutional – as the Court did so in the context of its
only in accordance with the avowed purpose and intention of PD 910.
pronouncements made in this Decision – petitioners equally pray that
the Executive Secretary and/or the DBM be ordered to release to the
As for the Presidential Social Fund, the Court takes judicial notice of CoA and to the public: (a) "the complete schedule/list of legislators
the fact that Section 12 of PD 1869 has already been amended by PD who have availed of their PDAF and VILP from the years 2003 to 2013,
1993 which thus moots the parties‘ submissions on the specifying the use of the funds, the project or activity and the
same.252 Nevertheless, since the amendatory provision may be readily recipient entities or individuals, and all pertinent data thereto" (PDAF
examined under the current parameters of discussion, the Court Use Schedule/List);254 and (b) "the use of the Executive‘s lump-sum,
proceeds to resolve its constitutionality. discretionary funds, including the proceeds from the x x x Malampaya
Funds and remittances from the PAGCOR x x x from 2003 to 2013,
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates specifying the x x x project or activity and the recipient entities or
that the Presidential Social Fund may be used "to first, finance the individuals, and all pertinent data thereto"255 (Presidential Pork Use
priority infrastructure development projects and second, to finance Report). Petitioners‘ prayer is grounded on Section 28, Article II and
the restoration of damaged or destroyed facilities due to calamities, Section 7, Article III of the 1987 Constitution which read as follows:
as may be directed and authorized by the Office of the President of
the Philippines." The Court finds that while the second indicated ARTICLE II
purpose adequately curtails the authority of the President to spend
the Presidential Social Fund only for restoration purposes which arise
Sec. 28. Subject to reasonable conditions prescribed by law,
from calamities, the first indicated purpose, however, gives him carte
the State adopts and implements a policy of full public
blanche authority to use the same fund for any infrastructure project
disclosure of all its transactions involving public interest.
he may so determine as a "priority". Verily, the law does not supply a
definition of "priority in frastructure development projects" and hence,
ARTICLE III Sec. 7.
leaves the President without any guideline to construe the same. To
note, the delimitation of a project as one of "infrastructure" is too
broad of a classification since the said term could pertain to any kind The right of the people to information on matters of public
of facility. This may be deduced from its lexicographic definition as concern shall be recognized. Access to official records, and to

66

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

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations. For their part, respondents espouse that the subject TRO only covers
"unreleased and unobligated allotments." They explain that once a
Petitioners further seek that the Court "order the inclusion in budgetary SARO has been issued and obligated by the implementing agency
deliberations with the Congress of all presently, off-budget, lump sum, concerned, the PDAF funds covered by the same are already
discretionary funds including but not limited to, proceeds from the x x x "beyond the reach of the TRO because they cannot be considered as
Malampaya Fund, remittances from the PAGCOR and the PCSO or ‘remaining PDAF.‘" They conclude that this is a reasonable
the Executive‘s Social Funds."260 interpretation of the TRO by the DBM.262

Suffice it to state that the above-stated relief sought by petitioners The Court agrees with petitioners in part.
covers a matter which is generally left to the prerogative of the
political branches of government. Hence, lest the Court itself At the outset, it must be observed that the issue of whether or not the
overreach, it must equally deny their prayer on this score. Court‘s September 10, 2013 TRO should be lifted is a matter rendered
moot by the present Decision. The unconstitutionality of the 2013 PDAF

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Article as declared herein has the consequential effect of converting or to liquidate the amounts obligated in the SARO; so it comes after. x
the temporary injunction into a permanent one. Hence, from the x x The NCA, Your Honor, is the go signal for the MDS for the authorized
promulgation of this Decision, the release of the remaining PDAF funds government-disbursing banks to, therefore, pay the payees
for 2013, among others, is now permanently enjoined. depending on the projects or projects covered by the SARO and the
NCA.
The propriety of the DBM‘s interpretation of the concept of "release"
must, nevertheless, be resolved as it has a practical impact on the Justice Bernabe: Are there instances that SAROs are cancelled or
execution of the current Decision. In particular, the Court must resolve revoked?
the issue of whether or not PDAF funds covered by obligated SAROs,
at the time this Decision is promulgated, may still be disbursed Atty. Ruiz: Your Honor, I would like to instead submit that there are
following the DBM‘s interpretation in DBM Circular 2013-8. instances that the SAROs issued are withdrawn by the DBM.

On this score, the Court agrees with petitioners‘ posturing for the Justice Bernabe: They are withdrawn?
fundamental reason that funds covered by an obligated SARO are
yet to be "released" under legal contemplation. A SARO, as defined Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
by the DBM itself in its website, is "aspecific authority issued to
identified agencies to incur obligations not exceeding a given
Thus, unless an NCA has been issued, public funds should not be
amount during a specified period for the purpose indicated. It shall
treated as funds which have been "released." In this respect,
cover expenditures the release of which is subject to compliance with
therefore, the disbursement of 2013 PDAF funds which are only
specific laws or regulations, or is subject to separate approval or
covered by obligated SAROs, and without any corresponding NCAs
clearance by competent authority."263
issued, must, at the time of this Decision’s promulgation, be enjoined
and consequently reverted to the unappropriated surplus of the
Based on this definition, it may be gleaned that a SARO only evinces general fund. Verily, in view of the declared unconstitutionality of the
the existence of an obligation and not the directive to pay. Practically 2013 PDAF Article, the funds appropriated pursuant thereto cannot be
speaking, the SARO does not have the direct and immediate effect of disbursed even though already obligated, else the Court sanctions the
placing public funds beyond the control of the disbursing authority. In dealing of funds coming from an unconstitutional source.
fact, a SARO may even be withdrawn under certain circumstances
which will prevent the actual release of funds. On the other hand, the
This same pronouncement must be equally applied to (a) the
actual release of funds is brought about by the issuance of the
Malampaya Funds which have been obligated but not released –
NCA,264 which is subsequent to the issuance of a SARO. As may be
meaning, those merely covered by a SARO – under the phrase "and
determined from the statements of the DBM representative during the
for such other purposes as may be hereafter directed by the
Oral Arguments:265
President" pursuant to Section 8 of PD 910; and (b) funds sourced from
the Presidential Social Fund under the phrase "to finance the priority
Justice Bernabe: Is the notice of allocation issued simultaneously with infrastructure development projects" pursuant to Section 12 of PD
the SARO? 1869, as amended by PD 1993, which were altogether declared by
the Court as unconstitutional. However, these funds should not be
xxxx reverted to the general fund as afore-stated but instead, respectively
remain under the Malampaya Funds and the Presidential Social Fund
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for to be utilized for their corresponding special purposes not otherwise
the agencies to obligate or to enter into commitments. The NCA, Your declared as unconstitutional.
Honor, is already the go signal to the treasury for us to be able to pay

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E. Consequential Effects of Decision. has conferred unto legislators the power of appropriation by giving
them personal, discretionary funds from which they are able to fund
As a final point, it must be stressed that the Court‘s pronouncement specific projects which they themselves determine, it has similarly
anent the unconstitutionality of (a) the 2013 PDAF Article and its violated the principle of non-delegability of legislative power ; insofar
Special Provisions, (b) all other Congressional Pork Barrel provisions as it has created a system of budgeting wherein items are not
similar thereto, and (c) the phrases (1) "and for such other purposes as textualized into the appropriations bill, it has flouted the prescribed
may be hereafter directed by the President" under Section 8 of PD procedure of presentment and, in the process, denied the President
910, and (2) "to finance the priority infrastructure development the power to veto items ; insofar as it has diluted the effectiveness of
projects" under Section 12 of PD 1869, as amended by PD 1993, must congressional oversight by giving legislators a stake in the affairs of
only be treated as prospective in effect in view of the operative fact budget execution, an aspect of governance which they may be
doctrine. called to monitor and scrutinize, the system has equally impaired
public accountability ; insofar as it has authorized legislators, who are
To explain, the operative fact doctrine exhorts the recognition that national officers, to intervene in affairs of purely local nature, despite
until the judiciary, in an appropriate case, declares the invalidity of a the existence of capable local institutions, it has likewise subverted
certain legislative or executive act, such act is presumed genuine local autonomy ; and again, insofar as it has conferred to the
constitutional and thus, entitled to obedience and respect and should President the power to appropriate funds intended by law for energy-
be properly enforced and complied with. As explained in the recent related purposes only to other purposes he may deem fit as well as
case of Commissioner of Internal Revenue v. San Roque Power other public funds under the broad classification of "priority
Corporation,266 the doctrine merely "reflects awareness that precisely infrastructure development projects," it has once more transgressed
because the judiciary is the governmental organ which has the final the principle of non-delegability.
say on whether or not a legislative or executive measure is valid, a
period of time may have elapsed before it can exercise the power of For as long as this nation adheres to the rule of law, any of the
judicial review that may lead to a declaration of nullity. It would be to multifarious unconstitutional methods and mechanisms the Court has
deprive the law of its quality of fairness and justice then, if there be no herein pointed out should never again be adopted in any system of
recognition of what had transpired prior to such adjudication."267 "In governance, by any name or form, by any semblance or similarity, by
the language of an American Supreme Court decision: ‘The actual any influence or effect. Disconcerting as it is to think that a system so
existence of a statute, prior to such a determination of constitutionally unsound has monumentally endured, the Court urges
unconstitutionality, is an operative fact and may have consequences the people and its co-stewards in government to look forward with the
which cannot justly be ignored.‘"268 optimism of change and the awareness of the past. At a time of great
civic unrest and vociferous public debate, the Court fervently hopes
For these reasons, this Decision should be heretofore applied that its Decision today, while it may not purge all the wrongs of society
prospectively. nor bring back what has been lost, guides this nation to the path
forged by the Constitution so that no one may heretofore detract
from its cause nor stray from its course. After all, this is the Court‘s
Conclusion
bounden duty and no other‘s.
The Court renders this Decision to rectify an error which has persisted in
WHEREFORE, the petitions are PARTLY GRANTED. In view of the
the chronicles of our history. In the final analysis, the Court must strike
constitutional violations discussed in this Decision, the Court hereby
down the Pork Barrel System as unconstitutional in view of the inherent
declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b)
defects in the rules within which it operates. To recount, insofar as it
all legal provisions of past and present Congressional Pork Barrel Laws,
has allowed legislators to wield, in varying gradations, non-oversight,
such as the previous PDAF and CDF Articles and the various
post-enactment authority in vital areas of budget execution, the
Congressional Insertions, which authorize/d legislators – whether
system has violated the principle of separation of powers; insofar as it
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individually or collectively organized into committees – to intervene, that the Executive Secretary and/or the Department of Budget and
assume or participate in any of the various post-enactment stages of Management be ordered to provide the public and the Commission
the budget execution, such as but not limited to the areas of project on Audit complete lists/schedules or detailed reports related to the
identification, modification and revision of project identification, fund availments and utilization of the funds subject of these cases.
release and/or fund realignment, unrelated to the power of Petitioners‘ access to official documents already available and of
congressional oversight; (c) all legal provisions of past and present public record which are related to these funds must, however, not be
Congressional Pork Barrel Laws, such as the previous PDAF and CDF prohibited but merely subjected to the custodian‘s reasonable
Articles and the various Congressional Insertions, which confer/red regulations or any valid statutory prohibition on the same. This denial is
personal, lump-sum allocations to legislators from which they are able without prejudice to a proper mandamus case which they or the
to fund specific projects which they themselves determine; (d) all Commission on Audit may choose to pursue through a separate
informal practices of similar import and effect, which the Court petition.
similarly deems to be acts of grave abuse of discretion amounting to
lack or excess of jurisdiction; and (e) the phrases (1) "and for such The Court also DENIES petitioners prayer to order the inclusion of the
other purposes as may be hereafter directed by the President" under funds subject of these cases in the budgetary deliberations of
Section 8 of Presidential Decree No. 910 and (2) "to finance the priority Congress as the same is a matter left to the prerogative of the political
infrastructure development projects" under Section 12 of Presidential branches of government.
Decree No. 1869, as amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation of the principle of Finally, the Court hereby DIRECTS all prosecutorial organs of the
non-delegability of legislative power. government to, within the bounds of reasonable dispatch, investigate
and accordingly prosecute all government officials and/or private
Accordingly, the Court‘s temporary injunction dated September 10, individuals for possible criminal offenses related to the irregular,
2013 is hereby declared to be PERMANENT. Thus, the improper and/or unlawful disbursement/utilization of all funds under
disbursement/release of the remaining PDAF funds allocated for the the Pork Barrel System.
year 2013, as well as for all previous years, and the funds sourced from
(1) the Malampaya Funds under the phrase "and for such other This Decision is immediately executory but prospective in effect.
purposes as may be hereafter directed by the President" pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social
SO ORDERED.
Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of Presidential Decree
No. 1869, as amended by Presidential Decree No. 1993, which are, at
the time this Decision is promulgated, not covered by Notice of Cash
Allocations (NCAs) but only by Special Allotment Release Orders
(SAROs), whether obligated or not, are hereby ENJOINED. The
remaining PDAF funds covered by this permanent injunction shall not
be disbursed/released but instead reverted to the unappropriated
surplus of the general fund, while the funds under the Malampaya
Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise declared as
unconstitutional.

On the other hand, due to improper recourse and lack of proper


substantiation, the Court hereby DENIES petitioners‘ prayer seeking
71