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KAPUNAN, J.:
A constitutional provision should be construed as to give it effective operation
and suppress the mischief at which it is aimed. 1 The 1987 Constitution
mandates that an aspirant for election to the House of Representatives be "a
registered voter in the district in which he shall be elected, and a resident
thereof for a period of not less than one year immediately preceding the
election." 2 The mischief which this provision reproduced verbatim from the
1973 Constitution seeks to prevent is the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the
position of Representative of the First District of Leyte with the Provincial
Election Supervisor on March 8, 1995, providing the following information in
item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION:
__________
Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same
position, filed a "Petition for Cancellation and Disqualification" 5 with the
Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year residency
requirement for candidates for the House of Representatives on the evidence
of declarations made by her in Voter Registration Record 94-No. 3349772 6and
in her Certificate of Candidacy. He prayed that "an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of
Candidacy, changing the entry "seven" months to "since childhood" in item no.
8 of the amended certificate. 8 On the same day, the Provincial Election
Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate
of Candidacy on the ground that it is filed out of time, the deadline for
the filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on
or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy
with
the
COMELEC's
Head
Office
in
Intramuros,
Manila
on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009
was likewise filed with the head office on the same day. In said Answer,
petitioner averred that the entry of the word "seven" in her original Certificate
of Candidacy was the result of an "honest misinterpretation" 10 which she
sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence. 11 Impugning
respondent's motive in filing the petition seeking her disqualification, she
noted that:
When respondent (petitioner herein) announced that she was
intending to register as a voter in Tacloban City and run for Congress
in the First District of Leyte, petitioner immediately opposed her
intended registration by writing a letter stating that "she is not a
resident of said city but of Barangay Olot, Tolosa, Leyte. After
respondent had registered as a voter in Tolosa following completion of
her six month actual residence therein, petitioner filed a petition with
the COMELEC to transfer the town of Tolosa from the First District to
the Second District and pursued such a move up to the Supreme
Court, his purpose being to remove respondent as petitioner's
opponent in the congressional election in the First District. He also
filed a bill, along with other Leyte Congressmen, seeking the creation
of another legislative district to remove the town of Tolosa out of the
First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the
instant petition for the same objective, as it is obvious that he is afraid
to submit along with respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest, orderly, peaceful,
free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections
(COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private
respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking
off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995;
and 3) canceling her original Certificate of Candidacy. 14 Dealing with two
primary issues, namely, the validity of amending the original Certificate of
Candidacy after the lapse of the deadline for filing certificates of candidacy,
and petitioner's compliance with the one year residency requirement, the
Second Division held:
Respondent raised the affirmative defense in her Answer that the
printed word "Seven" (months) was a result of an "honest
misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she
thought that what was asked was her "actual and physical" presence
in Tolosa and not residence of origin or domicile in the First Legislative
District, to which she could have responded "since childhood." In an
accompanying affidavit, she stated that her domicile is Tacloban City,
a component of the First District, to which she always intended to
return whenever absent and which she has never abandoned.
Furthermore, in her memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has been a resident of
the First Legislative District of Leyte since childhood, although she
January 28, 1995 which reflects that she is a resident of Brgy. Olot,
Tolosa, Leyte for 6 months at the time of the said registration (Annex
A, Petition). Said accuracy is further buttressed by her letter to the
election officer of San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration in the Permanent
List of Voters thereat so that she can be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different
documents show the respondent's consistent conviction that she has
transferred her residence to Olot, Tolosa, Leyte from Metro Manila only
for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the
respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of
Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is
clear that respondent has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always been considered as
synonymous with "domicile" which imports not only the intention to
reside in a fixed place but also personal presence in-that place,
coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA
408). In respondent's case, when she returned to the Philippines in
1991, the residence she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to Metro Manila and not
Tacloban.
This Division is aware that her claim that she has been a resident of
the First District since childhood is nothing more than to give her a
color of qualification where she is otherwise constitutionally
disqualified. It cannot hold ground in the face of the facts admitted by
the respondent in her affidavit. Except for the time that she studied
and worked for some years after graduation in Tacloban City, she
continuously lived in Manila. In 1959, after her husband was elected
Senator, she lived and resided in San Juan, Metro Manila where she
was a registered voter. In 1965, she lived in San Miguel, Manila where
she was again a registered voter. In 1978, she served as member of
the Batasang Pambansa as the representative of the City of Manila
and later on served as the Governor of Metro Manila. She could not
have served these positions if she had not been a resident of the City
of Manila. Furthermore, when she filed her certificate of candidacy for
the office of the President in 1992, she claimed to be a resident of San
In a Supplemental Petition dated 25 May 1995, petitioner averred that she was
the overwhelming winner of the elections for the congressional seat in the First
District of Leyte held May 8, 1995 based on the canvass completed by the
Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the
canvass showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said Certificate of
Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for the
congressional seat of the First District of Leyte and the public respondent's
Resolution suspending her proclamation, petitioner comes to this court for
relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The
principal issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the
First District of Leyte for a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the Omnibus
Election Code for disqualification cases under Article 78 of the said
Code.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper
time to go back to actual residence rather than mere intention to
reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it should be by
domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court
concluded that the framers of the 1987 Constitution obviously adhered to the
definition given to the term residence in election law, regarding it as having
the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez
Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of
the 1987 Constitution? Of what significance is the questioned entry in
petitioner's Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy which
ought to be decisive in determining whether or not and individual has satisfied
the constitution's residency qualification requirement. The said statement
becomes material only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to
his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest
mistake in jotting the word "seven" in the space provided for the residency
qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which
prompted petitioner to write down the period of her actual stay in Tolosa, Leyte
instead of her period of residence in the First district, which was "since
childhood" in the space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned resolution, albeit with
a different interpretation. For instance, when herein petitioner announced that
she would be registering in Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same, claiming that
petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered
in her place of actual residence in the First District, which is Tolosa, Leyte, a
fact which she subsequently noted down in her Certificate of Candidacy. A
close look at said certificate would reveal the possible source of the confusion:
the entry for residence (Item No. 7) is followed immediately by the entry for
residence in the constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
34
We explained that:
A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of course
includes study in other places, practice of his avocation, or engaging
in business. When an election is to be held, the citizen who left his
birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any
other reason, he may not absent himself from his professional or
business activities; so there he registers himself as voter as he has the
qualifications to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not
forsaken him. This may be the explanation why the registration of a
voter in a place other than his residence of origin has not been
deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of
every person to return to his place of birth. This strong feeling of
attachment to the place of one's birth must be overcome by positive
proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements
supporting its proposition that petitioner was ineligible to run for the position
of Representative of the First District of Leyte, the COMELEC was obviously
referring to petitioner's various places of (actual) residence, not her domicile.
In doing so, it not only ignored settled jurisprudence on residence in election
law and the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the
fact of petitioner's domicile, which we lift verbatim from the COMELEC's
Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1949
when she graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word University in Tacloban,
where she earned her degree in Education. Thereafter, she taught in
the Leyte Chinese School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker Daniel Z. Romualdez
in his office in the House of Representatives. In 1954, she married exPresident Ferdinand E. Marcos when he was still a congressman of
Ilocos Norte and registered there as a voter. When her husband was
elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965,
when her husband was elected President of the Republic of the
residence. This part of the article clearly contemplates only actual residence
because it refers to a positive act of fixing a family home or residence.
Moreover, this interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which means, "when the
husband shall transfer his residence," referring to another positive act of
relocating the family to another home or place of actual residence. The article
obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often as the
husband may deem fit to move his family, a circumstance more consistent
with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the
intention of the law to strengthen and unify the family, recognizing the fact
that the husband and the wife bring into the marriage different domiciles (of
origin). This difference could, for the sake of family unity, be reconciled only by
allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the
heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which obliges the husband
and wife to live together, thus:
Art. 109. The husband and wife are obligated to live together,
observe mutual respect and fidelity and render mutual help and
support.
The duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the couple
has many residences (as in the case of the petitioner). If the husband has to
stay in or transfer to any one of their residences, the wife should necessarily
be with him in order that they may "live together." Hence, it is illogical to
conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise,
we shall be faced with a situation where the wife is left in the domicile while
the husband, for professional or other reasons, stays in one of their (various)
residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate decision must be made
from a consideration of the purpose and intent with which the word is
used. Sometimes they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more
residences, such as a country residence and a city residence.
Residence is acquired by living in place; on the other hand, domicile
can exist without actually living in the place. The important thing for
from this unambiguous civil law delineation therefore, is that when petitioner
married the former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new
"domicile" after her marriage and only acquired a right to choose a new one
after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile of
origin (assuming this was lost by operation of law) as her domicile. This
"choice" was unequivocally expressed in her letters to the Chairman of the
PCGG when petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable
for the Marcos family to have a home in our homeland." 47 Furthermore,
petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the domiciliary intention
clearly manifested in her letters to the PCGG Chairman. She could not have
gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her
arrival in various parts of Metro Manila merely qualified as temporary or
"actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one during the subsistence
of the marriage, it would be highly illogical for us to assume that she cannot
regain her original domicile upon the death of her husband absent a positive
act of selecting a new one where situations exist within the subsistence of the
marriage itself where the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile enunciated
by this court up to this point, we are persuaded that the facts established by
the parties weigh heavily in favor of a conclusion supporting petitioner's claim
of legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995,
fourteen (14) days before the election in violation of Section 78 of the Omnibus
Election Code. 48 Moreover, petitioner contends that it is the House of
Representatives Electoral Tribunal and not the COMELEC which has jurisdiction
over the election of members of the House of Representatives in accordance
with Article VI Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory, 49 "so that noncompliance with them does not invalidate the judgment on the theory that if
the statute had intended such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory provision is often made on
grounds of necessity. Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less
SO ORDERED.
xxx
xxx
The people, Mr. President, have been hearing of ugly reports that
under your unpopular administration the free things they used to get
from the government are now for sale at premium prices. They say
that even pardons are for sale, and that regardless of the gravity or
seriousness of a criminal case, the culprit can always be bailed out
forever from jail as long as he can come across with a handsome dole.
I am afraid, such an anomalous situation would reflect badly on the
kind of justice that your administration is dispensing. . . . .
representative of the public to discharge his public trust with firmness and
success" for "it is indispensably necessary that he should enjoy the fullest
liberty of speech, and that he should be protected from the resentment of
every one, however powerful, to whom exercise of that liberty may occasion
offense."2 Such immunity has come to this country from the practices of
Parliamentary as construed and applied by the Congress of the United States.
Its extent and application remain no longer in doubt in so far as related to the
question before us. It guarantees the legislator complete freedom of
expression without fear of being made responsible in criminal or civil actions
before the courts or any other forum outside of the Congressional Hall. But is
does not protect him from responsibility before the legislative body itself
whenever his words and conduct are considered by the latter disorderly or
unbecoming a member thereof. In the United States Congress, Congressman
Fernando Wood of New York was censured for using the following language on
the floor of the House: "A monstrosity, a measure the most infamous of the
many infamous acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp.
798-799). Two other congressmen were censured for employing insulting
words during debate. (2 Hinds' Precedents, 799-801). In one case, a member
of Congress was summoned to testify on a statement made by him in debate,
but invoked his parliamentary privilege. The Committee rejected his plea. (3
Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress have
been, or could be censured, committed to prison 3, even expelled by the votes
of their colleagues. The appendix to this decision amply attest to the
consensus of informed opinion regarding the practice and the traditional power
of legislative assemblies to take disciplinary action against its
members, including imprisonment, suspension or expulsion. It mentions one
instance of suspension of a legislator in a foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949, suspended
a senator for one year.
Needless to add, the Rules of Philippine House of Representatives provide that
the parliamentary practices of the Congress of the United States shall apply in
a supplementary manner to its proceedings.
This brings up the third point of petitioner: the House may no longer take
action against me, he argues, because after my speech, and before approving
Resolution No. 59, it had taken up other business. Respondents answer that
Resolution No. 59 was unanimously approved by the House, that such approval
amounted to a suspension of the House Rules, which according to standard
parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation
of its Rules, it may not, however, affect past acts or renew its rights to take
action which had already lapsed.
The situation might thus be compared to laws 4 extending the period of
limitation of actions and making them applicable to actions that had lapsed.
The Supreme Court of the United States has upheld such laws as against the
contention that they impaired vested rights in violation of the Fourteenth
Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent
views. At any rate, court are subject to revocation modification or waiver at the
pleasure of the body adopting them." 5 And it has been said that "Parliamentary
rules are merely procedural, and with their observancem, the courts have no
concern. They may be waived or disregarded by the legislative body."
Consequently, "mere failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when the requisited
number of members have agreed to a particular measure." 6
The following is quoted from a reported decision of the Supreme court of
Tennessee:
The rule here invoked is one of parliamentary procedure, and it is
uniformly held that it is within the power of all deliberative bodies to
abolish, modify, or waive their own rules of procedure, adopted for the
orderly con duct of business, and as security against hasty action.
(Bennet vs. New Bedford, 110 Mass, 433; Holt vs.Somerville, 127
Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W.
276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280;
Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124
Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107
Miss. 696, 65 So. 888; McGraw vs.Whitson, 69 Iowa, 348, 28 N. W.
632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140 S. W.
Ann. Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of
Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery
of Ohio, who insulted the Speaker, for which Act a resolution of censure was
presented, the House approved the resolution, despite the argument that other
business had intervened after the objectionable remarks. (2 Hinds' Precedents
pp. 799-800.)
On the question whether delivery of speeches attacking the Chief Executive
constitutes disorderly conduct for which Osmea may be discipline, many
arguments pro and con have been advanced. We believe, however, that the
House is the judge of what constitutes disorderly behaviour, not only because
the Constitution has conferred jurisdiction upon it, but also because the matter
depends mainly on factual circumstances of which the House knows best but
which can not be depicted in black and white for presentation to, and
adjudication by the Courts. For one thing, if this Court assumed the power to
determine whether Osmea conduct constituted disorderly behaviour, it would
thereby have assumed appellate jurisdiction, which the Constitution never
intended to confer upon a coordinate branch of the Government. The theory of
separation of powers fastidiously observed by this Court, demands in such
situation a prudent refusal to interfere. Each department, it has been said, had
exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. The principle is well
established that the courts will not assume a jurisdiction in any case
amount to an interference by the judicial department with the
CONCEPCION, J.:
This is a petition for review of a decision of the Auditor General denying a
claim for refund of petitioner Casco Philippine Chemical Co., Inc.
The main facts are not disputed. Pursuant to the provisions of Republic Act No.
2609, otherwise known as the Foreign Exchange Margin Fee Law, the Central
Bank of the Philippines issued on July 1, 1959, its Circular No. 95. fixing a
uniform margin fee of 25% on foreign exchange transactions. To supplement
the circular, the Bank later promulgated a memorandum establishing the
procedure for applications for exemption from the payment of said fee, as
provided in said Republic Act No. 2609. Several times in November and
December 1959, petitioner Casco Philippine Chemical Co., Inc. which is
engaged in the manufacture of synthetic resin glues, used in bonding lumber
and veneer by plywood and hardwood producers bought foreign exchange
for the importation of urea and formaldehyde which are the main raw
materials in the production of said glues and paid therefor the
aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner
made another purchase of foreign exchange and paid the sum of P6,345.72 as
margin fee therefor.
Prior thereto, petitioner had sought the refund of the first sum of P33,765.42,
relying upon Resolution No. 1529 of the Monetary Board of said Bank, dated
November 3, 1959, declaring that the separate importation of urea and
formaldehyde is exempt from said fee. Soon after the last importation of these
products, petitioner made a similar request for refund of the sum of P6,345.72
paid as margin fee therefor. Although the Central Bank issued the
corresponding margin fee vouchers for the refund of said amounts, the Auditor
of the Bank refused to pass in audit and approve said vouchers, upon the
ground that the exemption granted by the Monetary Board for petitioner's
separate importations of urea and formaldehyde is not in accord with the
provisions of section 2, paragraph XVIII of Republic Act No. 2609. On appeal
taken by petitioner, the Auditor General subsequently affirmed said action of
the Auditor of the Bank. Hence, this petition for review.
The only question for determination in this case is whether or not "urea" and
"formaldehyde" are exempt by law from the payment of the aforesaid margin
fee. The pertinent portion of Section 2 of Republic Act No. 2609 reads:
The margin established by the Monetary Board pursuant to the
provision of section one hereof shall not be imposed upon the sale of
foreign exchange for the importation of the following:.
G.R. No. L-17931
xxx
xxx
xxx
the Senate to investigate the alleged overpricing and other unlawful provisions
of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
"Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege
Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was
the AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated
September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while
"some of the invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote 5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from
the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance
of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The
salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In
accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President prior to appearing
before either House of Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995; Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
For defying President Arroyos order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response
to the invitations sent to the following government officials: Light Railway
Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication (DOTC) Undersecretary
Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary Board Member Juanita
Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal
regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 informing him "that
officials of the Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials
have not secured the required consent from the President." On even date
which was also the scheduled date of the hearing on the alleged wiretapping,
Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of the
[AFP] is authorized to appear before any Senate or Congressional hearings
without seeking a written approval from the President" and "that no approval
has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations
engaged in developmental lawyering and work with the poor and marginalized
sectors in different parts of the country, and as an organization of citizens of
the Philippines and a part of the general public, it has legal standing to
institute the petition to enforce its constitutional right to information on
matters of public concern, a right which was denied to the public by E.O.
464,13 prays, that said order be declared null and void for being
unconstitutional and that respondent Executive Secretary Ermita be ordered to
cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senates powers and functions and conceals
information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members
duly elected into the Philippine Senate and House of Representatives, filed a
similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter 15 dated February 8, 2006, that "[p]ursuant to
Executive Order No. 464, th[e] Headquarters requested for a clearance from
the President to allow [them] to appear before the public hearing" and that
"they will attend once [their] request is approved by the President." As none of
those invited appeared, the hearing on February 10, 2006 was cancelled. 16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and
those from the Department of Budget and Management 18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the
petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1.
2.
3.
As Bayan Muna and Representatives Ocampo et al. have the standing to file
their petitions, passing on the standing of their co-petitioners Courage and
Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members, 50 invoke their
constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights 51 and to the maintenance of the
balance of power among the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing
in view of the transcendental issues raised in its petition which this Court
needs to resolve in order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance, however, it must
establish (1) the character of the funds (that it is public) or other assets
involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more
direct and specific interest in raising the questions being raised. 54 The first and
last determinants not being present as no public funds or assets are involved
and petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is bereft of
standing to file its petition. Its allegation that E.O. 464 hampers its legislative
agenda is vague and uncertain, and at best is only a "generalized interest"
which it shares with the rest of the political parties. Concrete injury, whether
actual or threatened, is that indispensable element of a dispute which serves
in part to cast it in a form traditionally capable of judicial resolution. 55 In fine,
PDP-Labans alleged interest as a political party does not suffice to clothe it
with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of
E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials. 56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance. 57 Specifically with
regard to the AFP officers who did not attend the hearing on September 28,
2005, respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the Armed
Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her
consent or prohibited the appearance of the officials concerned immaterial in
determining the existence of an actual case or controversy insofar as E.O. 464
is concerned. For E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in order to bar
officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these
officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article
VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein the Batasang Pambansa and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the
Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase
of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an important point, he was,
by resolution of the Senate, detained for contempt. Upholding the Senates
power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to
the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry with process to enforce it is an essential
and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain
what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate. 60 The matters which
may be a proper subject of legislation and those which may be a proper
subject of investigation are one. It follows that the operation of government,
being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is
the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress
has the right to that information and the power to compel the disclosure
thereof.
Congress."64 Similarly, Rozell defines it as "the right of the President and highlevel executive branch officers to withhold information from Congress, the
courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds. 67Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground that the
information is of such nature that its disclosure would subvert crucial military
or diplomatic objectives. Another variety is the informers privilege, or the
privilege of the Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of
that law. Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they
felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive had
a right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. x x x" 69 (Emphasis and
underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate exercise of the
executive domestic decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in intra-governmental
advisory and deliberative communications.70 (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For in
SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of
each House shall provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions shall be submitted
to the President of the Senate or the Speaker of the House of Representatives
at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When
the security of the State or the public interest so requires and the President so
states in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis--vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before
the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the Regular Batasang Pambansa as the
Gentleman himself has experienced in the interim Batasang Pambansa one
of the most competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not come and it is a
congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he
said that the fact that the Cabinet ministers may refuse to come to the House
of Representatives or the Senate [when requested under Section 22] does not
mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm
this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under which anybody for that
matter, may be summoned and if he refuses, he can be held in contempt of
the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the
question hour.
independence of the judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of Section
1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section 1, limited
as it is only to appearances in the question hour, is valid on its face. For under
Section 22, Article VI of the Constitution, the appearance of department heads
in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in
inquiries in aid of legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in such inquiry, unless a
valid claim of privilege is subsequently made, either by the President herself or
by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
to secure the consent of the President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national
security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the
PNP, and the National Security Adviser), are "covered by the executive
privilege."
The enumeration also includes such other officers as may be determined by
the President. Given the title of Section 2 "Nature, Scope and Coverage of
Executive Privilege" , it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on
a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope
and coverage of executive privilege, the reference to persons being "covered
by the executive privilege" may be read as an abbreviated way of saying that
the person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court shall
thus proceed on the assumption that this is the intention of the challenged
order.
Upon a determination by the designated head of office or by the President that
an official is "covered by the executive privilege," such official is subjected to
the requirement that he first secure the consent of the President prior to
appearing before Congress. This requirement effectively bars the appearance
of the official concerned unless the same is permitted by the President. The
proviso allowing the President to give its consent means nothing more than
that the President may reverse a prohibition which already exists by virtue of
E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a
head of office, authorized by the President under E.O. 464, or by the President
herself, that such official is in possession of information that is covered by
executive privilege. This determination then becomes the basis for the
officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be construed as a declaration to Congress that
the President, or a head of office authorized by the President, has determined
that the requested information is privileged, and that the President has not
reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that
the information is being withheld by the executive branch, by authority of the
President, on the basis of executive privilege. Verily, there is an implied claim
of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole
regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that officials of the
Executive Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of
Separation Of Powers, Adherence To The Rule On Executive Privilege And
Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In
Aid Of Legislation Under The Constitution, And For Other Purposes". Said
officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under
the recognized grounds of the privilege to justify their absence. Nor does it
expressly state that in view of the lack of consent from the President under
E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or
not. The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied. Respecting
the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the President or the heads of offices
authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from
Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange
of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and
Judicial power. This is not the situation in the instant case. 91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the
mere fact that it sanctions claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege under
the challenged order, Congress is left to speculate as to which among them is
being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the phrase
"confidential or classified information between the President and the public
officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration
leaves Congress in the dark on how the requested information could be
classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without
forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it should
be respected.93 These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon. 95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimants interrogatories,
government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown nor even alleged that
those who evaluated claimants product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set
up by an unsupported claim. The facts upon which the privilege is based must
be established. To find these interrogatories objectionable, this Court would
have to assume that the evaluation and classification of claimants products
was a matter of internal policy formulation, an assumption in which this Court
is unwilling to indulge sua sponte. 98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency
must provide precise and certain reasons for preserving the confidentiality of
requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation
and description of the documents within its scope as well as precise and
certain reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more
than its sua sponte speculation with which to weigh the applicability of the
claim. An improperly asserted claim of privilege is no claim of privilege.
Therefore, despite the fact that a claim was made by the proper executive as
Reynolds requires, the Court can not recognize the claim in the instant case
because it is legally insufficient to allow the Court to make a just and
reasonable determination as to its applicability. To recognize such a broad
claim in which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less
than a claim of privilege clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these questions. For it is as true here as it was there,
that if (petitioner) had legitimate reasons for failing to produce the records of
the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement
would have given the Subcommittee an opportunity to avoid the blocking of its
inquiry by taking other appropriate steps to obtain the records. To deny the
Committee the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His failure to
make any such statement was "a patent evasion of the duty of one summoned
to produce papers before a congressional committee[, and] cannot be
condoned." (Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. 103 A useful analogy in
such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of such law is a matter of public interest
which any member of the body politic may question in the political forums or,
if he is a proper party, even in courts of justice. 108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the right of
the people to information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have been
apprised of this issuance before it was implemented.
Conclusion
It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to
the peoples will. Yet, this open dialogue can be effective only to the extent
that the citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit. 107(Emphasis and
underscoring supplied)
The infirm provisions of E.O. 464, however, allow the executive branch to
evade congressional requests for information without need of clearly asserting
a right to do so and/or proffering its reasons therefor. By the mere expedient of
invoking said provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For
Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be presumed valid. Otherwise, we shall
not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much
greater value our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
Executive Order No. 464 (series of 2005), "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"
are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators, including
himself, had been allotted an additional P50 Million each as "incentive" for
voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estradas revelation, Secretary Florencio Abad of the DBM
issued a public statement entitled Abad: Releases to Senators Part of Spending
Acceleration Program,1 explaining that the funds released to the Senators had
been part of the DAP, a program designed by the DBM to ramp up spending to
accelerate economic expansion. He clarified that the funds had been released
to the Senators based on their letters of request for funding; and that it was
not the first time that releases from the DAP had been made because the DAP
had already been instituted in 2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross domestic product (GDP) to
slow down. He explained that the funds under the DAP were usually taken from
(1) unreleased appropriations under Personnel Services; 2 (2) unprogrammed
funds; (3) carry-over appropriations unreleased from the previous year; and (4)
budgets for slow-moving items or projects that had been realigned to support
faster-disbursing projects.
July 1, 2014
The DBM soon came out to claim in its website 3 that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1) the
pooling
of
unreleased
appropriations,
like
unreleased
Personnel
Services4 appropriations that would lapse at the end of the year, unreleased
appropriations of slow-moving projects and discontinued projects per zero
based budgeting findings;5 and (2) the withdrawal of unobligated allotments
also for slow-moving programs and projects that had been earlier released to
the agencies of the National Government.
The DBM listed the following as the legal bases for the DAPs use of
savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution, which
granted to the President the authority to augment an item for his office in the
general appropriations law; (2) Section 49 (Authority to Use Savings for Certain
Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter
5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and
(3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013,
particularly their provisions on the (a) use of savings; (b) meanings of savings
and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal
bases the special provisions on unprogrammed fund contained in the GAAs of
2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
brought the DAP to the consciousness of the Nation for the first time, and
made this present controversy inevitable. That the issues against the DAP
came at a time when the Nation was still seething in anger over Congressional
pork barrel "an appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a representatives
district"7 excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other, as follows: G.R. No.
209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7,
2013; G.R. No. 209155 (Villegas), 8 on October 16, 2013; G.R. No. 209164
(PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013;
G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on
October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R.
No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Courts attention
NBC No. 541 (Adoption of Operational Efficiency Measure Withdrawal of
Agencies Unobligated Allotments as of June 30, 2012), alleging that NBC No.
541, which was issued to implement the DAP, directed the withdrawal of
unobligated allotments as of June 30, 2012 of government agencies and offices
with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the
Office of the Solicitor General (OSG).
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a) They treat the unreleased appropriations and unobligated allotments
withdrawn from government agencies as "savings" as the term is used
in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012
and 2013;
(b) They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department; and
(c) They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public accountability
enshrined in the 1987 Constitution considering that it authorizes the release of
funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541, and
all other executive issuances allegedly implementing the DAP.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:
F. Whether or not the release of unprogrammed funds under the DAP was in
accord with the GAAs.
Procedural Issue:
During the oral arguments held on November 19, 2013, the Court directed Sec.
Abad to submit a list of savings brought under the DAP that had been sourced
from (a) completed programs; (b) discontinued or abandoned programs; (c)
unpaid appropriations for compensation; (d) a certified copy of the Presidents
directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars
or orders issued in relation to the DAP.9
The Court directed the holding of oral arguments on the significant issues
raised and joined.
c.
On February 14, 2014, the OSG submitted another set of documents in further
compliance with the Resolution dated January 28, 2014, viz:
On January 28, 2014, the OSG, to comply with the Resolution issued on January
21, 2014 directing the respondents to submit the documents not yet submitted
in compliance with the directives of the Court or its Members, submitted
several evidence packets to aid the Court in understanding the factual bases
of the DAP, to wit:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the
effect that the revenue collections exceeded the original revenue targets for
the years 2011, 2012 and 2013, including collections arising from sources not
considered in the original revenue targets, which certifications were required
for the release of the unprogrammed funds as provided in Special Provision No.
1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs;
and (2) A report on releases of savings of the Executive Department for the
use of the Constitutional Commissions and other branches of the Government,
as well as the fund releases to the Senate and the Commission on Elections
(COMELEC).
d.
e.
f.
g.
(1) First Evidence Packet11 containing seven memoranda issued by the DBM
through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP
identified projects approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011
Proposed Disbursement Acceleration Program (Projects and
Sources of Funds);
b. Memorandum for the President dated December 12, 2011
(Omnibus Authority to Consolidate Savings/Unutilized Balances
and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment);
d. Memorandum for the President dated September 4, 2012 (Release
of funds for other priority projects and expenditures of the
Government);
e. Memorandum for the President dated December 19, 2012
(Proposed Priority Projects and Expenditures of the Government);
f.
Memorandum for the President dated May 20, 2013 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment to Fund the Quarterly Disbursement Acceleration
Program); and
g. Memorandum for the President dated September 25, 2013
(Funding for the Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 consisting of 15 applications of the DAP, with
their corresponding Special Allotment Release Orders (SAROs) and
appropriation covers;
(3) Third Evidence Packet13 containing a list and descriptions of 12 projects
under the DAP;
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include
applications for the issuance of writs of preliminary prohibitory injunction or
temporary restraining orders. More specifically, the nature of the petitions is
individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco)
Certiorariand Prohibition
Certiorariand Prohibition
Certiorariand Prohibition
Prohibition
Certiorariand Prohibition
Certiorari
The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties; 19 that the
petitioners lacked legal standing to sue because no allegations were made to
the effect that they had suffered any injury as a result of the adoption of the
DAP and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue considering
that the adoption and implementation of the DAP and the issuance of NBC No.
541 were not in the exercise of the taxing or spending power of
Congress;20 and that even if the petitioners had suffered injury, there were
plain, speedy and adequate remedies in the ordinary course of law available to
them, like assailing the regularity of the DAP and related issuances before the
Commission on Audit (COA) or in the trial courts. 21
The respondents aver that the special civil actions of certiorari and prohibition
are not proper actions for directly assailing the constitutionality and validity of
the DAP, NBC No. 541, and the other executive issuances implementing the
DAP.22
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
questioning the validity of any law unless there is an actual case or
controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely appellate;
that for a court of law to pass upon the constitutionality of a law or any act of
the Government when there is no case or controversy is for that court to set
itself up as a reviewer of the acts of Congress and of the President in violation
of the principle of separation of powers; and that, in the absence of a pending
case or controversy involving the DAP and NBC No. 541, any decision herein
could amount to a mere advisory opinion that no court can validly render. 23
The respondents argue that it is the application of the DAP to actual situations
that the petitioners can question either in the trial courts or in the COA; that if
the petitioners are dissatisfied with the ruling either of the trial courts or of the
COA, they can appeal the decision of the trial courts by petition for review on
certiorari, or assail the decision or final order of the COA by special civil action
for certiorari under Rule 64 of the Rules of Court. 24
The respondents arguments and submissions on the procedural issue are
bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower
courts as may be established by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court, and that court, upon its
creation, becomes by operation of the Constitution one of the repositories of
judicial power.25 However, only the Court is a constitutionally created court, the
rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable" but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." It has thereby
expanded the concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the
1987 Constitution were laid out during the deliberations of the 1986
Constitutional Commission by Commissioner Roberto R. Concepcion (a former
Chief Justice of the Philippines) in his sponsorship of the proposed provisions
on the Judiciary, where he said:
The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judicial party. In a decided case, a husband complained that his
wife was unwilling to perform her duties as a wife. The Court said: "We can tell
your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly
derogatory to human dignity." This is why the first part of the second
paragraph of Section 1 provides that: Judicial power includes the duty of courts
to settle actual controversies involving rights which are legally demandable or
enforceable
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
also, another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question. (Bold emphasis
supplied)26
the inferior court was said to be exceeding its jurisdiction or was not
proceeding according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much
the same as it has been in the common law. In this jurisdiction, however, the
exercise of the power to issue the writ of certiorari is largely regulated by
laying down the instances or situations in the Rules of Court in which a
superior court may issue the writ of certiorari to an inferior court or officer.
Section 1, Rule 65 of the Rules of Court compellingly provides the
requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction,
which includes the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant
the issuance of the writ. The abuse of discretion must be grave, which means
either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused
to perform the duty enjoined or to act in contemplation of law, such as when
such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of jurisdiction. 31
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact that it
is a corrective remedy used for the re-examination of some action of an
inferior tribunal, and is directed to the cause or proceeding in the lower court
and not to the court itself, while prohibition is a preventative remedy issuing to
restrain future action, and is directed to the court itself. 32 The Court expounded
on the nature and function of the writ of prohibition in Holy Spirit Homeowners
Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an IRR issued
in the exercise of a quasi-legislative function. Prohibition is an extraordinary
writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said
entity or person to desist from further proceedings when said proceedings are
without or in excess of said entitys or persons jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law.
Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. Generally, the purpose of a writ of
prohibition is to keep a lower court within the limits of its jurisdiction in order
to maintain the administration of justice in orderly channels. Prohibition is the
proper remedy to afford relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in handling matters
clearly within its cognizance the inferior court transgresses the bounds
prescribed to it by the law, or where there is no adequate remedy available in
the ordinary course of law by which such relief can be obtained. Where the
principal relief sought is to invalidate an IRR, petitioners remedy is an ordinary
action for its nullification, an action which properly falls under the jurisdiction
of the Regional Trial Court. In any case, petitioners allegation that
"respondents are performing or threatening to perform functions without or in
excess of their jurisdiction" may appropriately be enjoined by the trial court
through a writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition
are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized
by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials. 34
Necessarily, in discharging its duty under Section 1, supra, to set right and
undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court is
not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the duty and the
obligation of determining, in appropriate cases, the validity of any assailed
legislative or executive action. This entrustment is consistent with the
republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the
Court has become more alert to discharge its constitutional duty. We will not
now refrain from exercising our expanded judicial power in order to review and
determine, with authority, the limitations on the Chief Executives spending
power.
b) Requisites for the exercise of the power of judicial review were complied
with
The requisites for the exercise of the power of judicial review are the following,
namely: (1) there must bean actual case or justiciable controversy before the
Court; (2) the question before the Court must be ripe for adjudication; (3) the
person challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and must be the
very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise
of judicial power by the Court. 37 An actual case or controversy, in the words of
Belgica v. Executive Secretary Ochoa:38
locus standi. There, the Court held that the person who would assail the
validity of a statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and
Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized
the approach when the cases had "transcendental importance." Some notable
controversies whose petitioners did not pass the direct injury test were allowed
to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided
to resolve the issues raised by the petition due to their "far reaching
implications," even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests on
the theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against
as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public
right.
Quite often, as here, the petitioner in a public action sues as a citizen or
taxpayer to gain locus standi. That is not surprising, for even if the issue may
appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. MacapagalArroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins: "In matter of mere public right, howeverthe
people are the real partiesIt is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but
by concerned citizens, taxpayers or voters who actually sue in the public
interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have
invoked their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further
dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political
branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its
legal standing to bring cases upon constitutional issues. 48 Luna, the petitioner
in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the
petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule
of law and of paramount importance of the question in this action, not to
mention its civic duty as the official association of all lawyers in this country." 49
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi
on each of them.
In addition, considering that the issues center on the extent of the power of
the Chief Executive to disburse and allocate public funds, whether
appropriated by Congress or not, these cases pose issues that are of
transcendental importance to the entire Nation, the petitioners included. As
such, the determination of such important issues call for the Courts exercise
of its broad and wise discretion "to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in
properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had
derived from the Latin word bulga (which means bag or purse). 51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined
"budget" as the financial program of the National Government for a designated
L. Quezon on April 25, 1936, created the Budget Commission to serve as the
agency that carried out the Presidents responsibility of preparing the
budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938
and established the Philippine budget process. The law also provided a lineitem budget as the framework of the Governments budgeting system, 63 with
emphasis on the observance of a "balanced budget" to tie up proposed
expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of
Republic Act (RA) No. 992,whereby Congress introduced performancebudgeting to give importance to functions, projects and activities in terms of
expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on June
11, 1978. The latter decree converted the Budget Commission into the Ministry
of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM pursuant to
EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget
Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget
Call by the DBM. The Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee (DBCC) as well as policy
guidelines and procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two kinds, namely:
(1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed
to all government-owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the various
departments and agencies to partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency Budget Proposals, which
proposals are then presented before a technical panel of the DBM in scheduled
budget hearings wherein the various departments and agencies are given the
opportunity to defend their budget proposals. DBM bureaus thereafter review
the Agency Budget Proposals and come up with recommendations for the
Executive Review Board, comprised by the DBM Secretary and the DBMs
senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis--vis the priority
agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP)and a Budget of Expenditures and Sources
of Financing (BESF). The NEP provides the details of spending for each
department and agency by program, activity or project (PAP), and is submitted
in the form of a proposed GAA. The Details of Selected Programs and Projects
is the more detailed disaggregation of key PAPs in the NEP, especially those in
line with the National Governments development plan. The Staffing Summary
provides the staffing complement of each department and agency, including
the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or reprioritization. Once the
NEP and the BESF are approved by the President and the Cabinet, the DBM
prepares the budget documents for submission to Congress. The budget
documents consist of: (1) the Presidents Budget Message, through which the
President explains the policy framework and budget priorities; (2) the BESF,
mandated by Section 22, Article VII of the Constitution, 68 which contains the
macroeconomic assumptions, public sector context, breakdown of the
expenditures and funding sources for the fiscal year and the two previous
years; and (3) the NEP.
Public or government expenditures are generally classified into two categories,
specifically: (1) capital expenditures or outlays; and (2) current operating
expenditures. Capital expenditures are the expenses whose usefulness lasts
for more than one year, and which add to the assets of the Government,
including investments in the capital of government-owned or controlled
corporations and their subsidiaries. 69 Current operating expenditures are the
purchases of goods and services in current consumption the benefit of which
does not extend beyond the fiscal year. 70 The two components of current
expenditures are those for personal services (PS), and those for maintenance
and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into:
(1) economic development expenditures (i.e., expenditures on agriculture and
natural resources, transportation and communications, commerce and
industry, and other economic development efforts); 71 (2) social services or
social development expenditures (i.e., government outlay on education, public
health and medicare, labor and welfare and others); 72 (3) general government
or general public services expenditures (i.e., expenditures for the general
government, legislative services, the administration of justice, and for
pensions and gratuities);73 (4) national defense expenditures (i.e., sub-divided
into national security expenditures and expenditures for the maintenance of
peace and order);74 and (5) public debt.75
Public expenditures may further be classified according to the nature of funds,
i.e., general fund, special fund or bond fund. 76
On the other hand, public revenues complement public expenditures and cover
all income or receipts of the government treasury used to support government
expenditures.77
Classical economist Adam Smith categorized public revenues based on two
principal sources, stating: "The revenue which must defraythe necessary
expenses of government may be drawn either, first from some fund which
peculiarly belongs to the sovereign or commonwealth, and which is
independent of the revenue of the people, or, secondly, from the revenue of
the people."78 Adam Smiths classification relied on the two aspects of the
nature of the State: first, the State as a juristic person with an artificial
personality, and, second, the State as a sovereign or entity possessing
supreme power. Under the first aspect, the State could hold property and
engage in trade, thereby deriving what is called its quasi private income or
revenues, and which "peculiarly belonged to the sovereign." Under the second
aspect, the State could collect by imposing charges on the revenues of its
subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance
government activities); 80 (2) capital revenues(i.e., proceeds from sales of
fixed capital assets or scrap thereof and public domain, and gains on such
sales like sale of public lands, buildings and other structures, equipment, and
other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
contributions and aids given to the Government for its operation on specific
purposes in the form of money and/or materials, and do not require any
monetary commitment on the part of the recipient); 82 (4) extraordinary
income(i.e., repayment of loans and advances made by government
corporations and local governments and the receipts and shares in income of
the Banko Sentral ng Pilipinas, and other receipts); 83 and (5) public
borrowings(i.e., proceeds of repayable obligations generally with interest from
domestic and foreign creditors of the Government in general, including the
National Government and its political subdivisions). 84
More specifically, public revenues are classified as follows: 85
General Income
1. Subsidy Income from National
Government
2. Subsidy from Central Office
3. Subsidy from Regional Office/Staff
Bureaus
4. Income from Government Services
5. Income from Government Business
Operations
6. Sales Revenue
7. Rent Income
8. Insurance Income
9. Dividend Income
10. Interest Income
Specific Income
1. Income Taxes
2. Property Taxes
3. Taxes on Goods and Services
4. Taxes on International Trade and
Transactions
5. Other Taxes
6.Fines and Penalties-Tax Revenue
7. Other Specific Income
86
The Budget Legislation Phase covers the period commencing from the time
Congress receives the Presidents Budget, which is inclusive of the NEPand the
BESF, up to the Presidents approval of the GAA. This phase is also known as
the Budget Authorization Phase, and involves the significant participation of
the Legislative through its deliberations.
Initially, the Presidents Budget is assigned to the House of Representatives
Appropriations Committee on First Reading. The Appropriations Committee and
its various Sub-Committees schedule and conduct budget hearings to examine
the PAPs of the departments and agencies. Thereafter, the House of
Representatives drafts the General Appropriations Bill (GAB). 87
The GABis sponsored, presented and defended by the House of
Representatives Appropriations Committee and Sub-Committees in plenary
session. As with other laws, the GAB is approved on Third Reading before the
House of Representatives version is transmitted to the Senate. 88
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee hearings
simultaneously with the House of Representatives deliberations. The Senates
Finance Committee and its Sub-Committees may submit the proposed
amendments to the GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the Senate. The Senate
version of the GAB is likewise approved on Third Reading. 89
The House of Representatives and the Senate then constitute a panel each to
sit in the Bicameral Conference Committee for the purpose of discussing and
harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for
approval.90 The President reviews the GAB, and prepares the Veto Message
where budget items are subjected to direct veto, 91 or are identified for
conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB
for the ensuing fiscal year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the GAB is passed
by the Congress.92
DAP
was
a
promote economic growth
program
designed
to
growth by the fourth quarter of 2011. 110 The continued implementation of the
DAP strengthened growth by 11.8% year on year while infrastructure spending
rebounded from a 29% contraction to a 34% growth as of September 2013. 111
The DAP thus proved to be a demonstration that expenditure was a policy
instrument that the Government could use to direct the economies towards
growth and development.112 The Government, by spending on public
infrastructure, would signify its commitment of ensuring profitability for
prospective investors.113 The PAPs funded under the DAP were chosen for this
reason based on their: (1) multiplier impact on the economy and infrastructure
development; (2) beneficial effect on the poor; and (3) translation into
disbursements.114
b. History of the implementation of the DAP, and sources of funds under the
DAP
How the Administrations economic managers conceptualized and developed
the DAP, and finally presented it to the President remains unknown because
the relevant documents appear to be scarce.
The earliest available document relating to the genesis of the DAP was the
memorandum of October 12,2011 from Sec. Abad seeking the approval of the
President to implement the proposed DAP. The memorandum, which contained
a list of the funding sources for P72.11 billion and of the proposed priority
projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM
(PROJECTS AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement
Acceleration Program totaling P72.11 billion. We are already working with all
the agencies concerned for the immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program
B. Projects in the Disbursement Acceleration Program
(Descriptions of projects attached as Annex A)
C. Summary
For His Excellencys Consideration
[/] APPROVED
1.3 to provide for deficiencies under the Special
Purpose Funds, e.g., PDAF, Calamity Fund, Contingent
Fund
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum
for the President dated December 12, 2011116 requesting omnibus authority to
consolidate the savings and unutilized balances for fiscal year 2011. Pertinent
portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its
Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate
savings/unutilized balances in FY 2011 corresponding to completed or
discontinued projects which may be pooled to fund additional projects or
expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even
if their implementation carries over to 2012 without necessarily impacting on
our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews
conducted on the agencies operations, particularly on the
implementation of their projects/activities, including expenses
incurred in undertaking the same, have identified savings out
of the 2011 General Appropriations Act. Said savings
correspond to completed or discontinued projects under
certain departments/agencies which may be pooled, for the
following:
1.1 to provide for new activities which have not been
anticipated during preparation of the budget;
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated
allotments as of June 30, 2012 of all national government
agencies (NGAs) charged against FY 2011 Continuing
Appropriation (R.A. No.10147) and FY 2012 Current
Appropriation (R.A. No. 10155), pertaining to:
4.0 Exemption
5.0 Guidelines
5.1 National government agencies shall continue to undertake
procurement activities notwithstanding the implementation of
the policy of withdrawal of unobligated allotments until the
end of the third quarter, FY 2012. Even without the
allotments, the agency shall proceed in undertaking the
procurement processes (i.e., procurement planning up to the
conduct of bidding but short of awarding of contract) pursuant
for public use, should require an enabling law for its validity. VACC maintains
that the DAP, because it involved huge allocations that were separate and
distinct from the GAAs, circumvented and duplicated the GAAs without
congressional authorization and control.
The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of the
1987 Constitution that "[n]o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
appropriation, but a program or an administrative system of prioritizing
spending; and that the adoption of the DAP was by virtue of the authority of
the President as the Chief Executive to ensure that laws were faithfully
executed.
FLORENCIO
B.
ABAD
As can be seen, NBC No. 541 specified that the unobligated allotments of all
agencies and departments as of June 30, 2012 that were charged against the
continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No.
10155) were subject to withdrawal through the issuance of negative SAROs,
but such allotments could be either: (1) reissued for the original PAPs of the
concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3)
used to augment existing PAPs of any agency and to fund priority PAPs not
considered in the 2012 budget but expected to be started or implemented in
2012. Financing the other priority PAPs was made subject to the approval of
the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn
unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented
and funded, that is (1) by declaring "savings" coming from the various
departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds;
and (3) applying the "savings" and unprogrammed funds to augment existing
PAPs or to support other priority PAPs.
c. DAP was not an appropriation measure; hence, no appropriation law was
required to adopt or to implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not
enact a law to establish the DAP, or to authorize the disbursement and release
of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and
COURAGE observe that the appropriations funded under the DAP were not
included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and
COURAGE, the DAP, being actually an appropriation that set aside public funds
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section
44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the
authority to transfer any fund appropriated for the different departments,
bureaus, offices and agencies of the Executive Department which are included
in the General Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General Appropriations Act or
approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation
of the Executive Department in the General Appropriations Act, from savings in
the appropriations of another department, bureau, office or agency within the
Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege
granted under said Section 16. It empowers the President to indiscriminately
transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any department, bureau or
office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken, or whether
or not the transfer is for the purpose of augmenting the item to which said
transfer is to be made. It does not only completely disregard the standards set
in the fundamental law, thereby amounting to an undue delegation of
legislative powers, but likewise goes beyond the tenor thereof. Indeed, such
constitutional infirmities render the provision in question null and void. 143
In the end, the ten percent limitation was discarded during the plenary of the
Convention, which adopted the following final version under Section 16, Article
VIII of the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx
impact of the phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the President, the
transfer was to an item of appropriation within the Executive). The provisions
carried a different phrase ("to augment any item in this Act"), and the effect
was that the 2011 and 2012 GAAs thereby literally allowed the transfer of
funds from savings to augment any item in the GAAs even if the item belonged
to an office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions
cannot be used to claim authority to transfer appropriations from the Executive
to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the
counterpart provision in the 2013 GAA, to wit:
amount allotted for the appropriation; that the definition of "savings" in the
GAAs set only the parameters for determining when savings occurred; that it
was still the President (as well as the other officers vested by the Constitution
with the authority to augment) who ultimately determined when savings
actually existed because savings could be determined only during the stage of
budget execution; that the President must be given a wide discretion to
accomplish his tasks; and that the withdrawn unobligated allotments were
savings inasmuch as they were clearly "portions or balances of any
programmed appropriationfree from any obligation or encumbrances which
are (i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the appropriation is
authorized"
We partially find for the petitioners.
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section
25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from
appropriations within the respective offices; and that the transfer must be for
the purpose of augmenting an item of appropriation within the respective
offices.
b.2. Second Requisite There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP the unreleased
appropriations and withdrawn unobligated allotments were not actual
savings within the context of Section 25(5), supra, and the relevant provisions
of the GAAs. Belgica argues that "savings" should be understood to refer to the
excess money after the items that needed to be funded have been funded, or
those that needed to be paid have been paid pursuant to the budget. 146 The
petitioners posit that there could be savings only when the PAPs for which the
funds had been appropriated were actually implemented and completed, or
finally discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because such PAPs had
not actually been abandoned or discontinued yet. 147 They stress that NBC No.
541, by allowing the withdrawn funds to be reissued to the "original program
or project from which it was withdrawn," conceded that the PAPs from which
the supposed savings were taken had not been completed, abandoned or
discontinued.148
The OSG represents that "savings" were "appropriations balances," being the
difference between the appropriation authorized by Congress and the actual
allocated them. However, if an agency has unfilled positions in its plantilla and
did not receive an allotment and NCA for such vacancies, appropriations for
such positions, although unreleased, may already constitute savings for that
agency under the second instance.
The three instances listed in the GAAs aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no
longer existent.
Unobligated allotments, on the other hand, were encompassed by the first part
of the definition of "savings" in the GAA, that is, as "portions or balances of
any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the
three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances existed. This
signified that the DBMs withdrawal of unobligated allotments had disregarded
the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory Expenditures
and Expenditures for Business-type Activities because of the physical
impossibility to obligate and spend such funds as MOOE for a period that
already lapsed. Following this observation, MOOE for future months are not
savings and cannot be transferred.
The DBMs Memorandum for the President dated June 25, 2012 (which became
the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on
the agencies operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the
same, have been continuously calling the attention of all National
Government agencies (NGAs) with low levels of obligations as of end
of the first quarter to speedup the implementation of their programs
and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings
with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the
departments disposal, the level of financial performance of some
departments registered below program, with the targeted
obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all
unobligated balances as of June 30, 2012, both for continuing and
current allotments shall be withdrawn and pooled to fund fast moving
programs/projects.
Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to
fund the DAP on a quarterly basis, viz:
Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of June 30,
In contrast, the respondents emphasize that NBC No. 541 adopted a spending,
not saving, policy as a last-ditch effort of the Executive to push agencies into
actually spending their appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the decision of the
Executive to refuse to spend funds for political or ideological reasons; and that
the withdrawal of allotments under NBC No. 541 was made pursuant to Section
38, Chapter 5, Book VI of the Administrative Code, by which the President was
granted the authority to suspend or otherwise stop further expenditure of
funds allotted to any agency whenever in his judgment the public interest so
required.
The validity period of the affected appropriations, already given the brief Lifes
pan of one year, was further shortened to only a quarter of a year under the
DBMs memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in
order to have a larger fund available for discretionary spending. They aver that
the respondents, by withdrawing unobligated allotments in the middle of the
fiscal year, in effect deprived funding for PAPs with existing appropriations
under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments
were being withdrawn upon the instance of the implementing agencies based
on their own assessment that they could not obligate those allotments
pursuant to the Presidents directive for them to spend their appropriations as
quickly as they could in order to ramp up the economy. 156
We agree with the petitioners.
Contrary to the respondents insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the following budget accountability
reports as of June 30, 2012;
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agencys latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agencys
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to P1,600 M
(i.e., P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer
of unobligated allotments and the pooling of unreleased appropriations; and
that the unbridled withdrawal of unobligated allotments and the retention of
The assertions of the petitioners are upheld. The withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations were
invalid for being bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds cannot be
considered as impoundment.
According to Philippine Constitution Association v. Enriquez: 159 "Impoundment
refers to a refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget authority of
any type." Impoundment under the GAA is understood to mean the retention
or deduction of appropriations. The 2011 GAA authorized impoundment only in
case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through retention
or deduction, unless in accordance with the rules and regulations to be issued
by the DBM: PROVIDED, That all the funds appropriated for the purposes,
programs, projects and activities authorized under this Act, except those
covered under the Unprogrammed Fund, shall be released pursuant to Section
33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or
deduction of appropriations authorized in this Act shall be effected only in
cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall
be construed to mean that (i) the actual national government budget deficit
has exceeded the quarterly budget deficit targets consistent with the full-year
target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the Constitution, or
(ii) there are clear economic indications of an impending occurrence of such
condition, as determined by the Development Budget Coordinating Committee
and approved by the President.
be
augment
No
funds
transferred
deficient
from
under
items
The third requisite for a valid transfer of funds is that the purpose of the
transfer should be "to augment an item in the general appropriations law for
the respective offices." The term "augment" means to enlarge or increase in
size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that
the appropriation for the PAP item to be augmented must be deficient, to wit:
x x x Augmentation implies the existence in this Act of a program, activity, or
project with an appropriation, which upon implementation, or subsequent
evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be
deficient before it could be augmented from savings. Note is taken of the fact
that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through
the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were applied
to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the respective
GAAs, namely:
For example the SARO issued on December 22, 2011 for the highly vaunted
Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under the
Department of Science and Technology (DOST) covered the amount ofP1.6
Billion,169 broken down as follows:
165
(v) P10 billion for the relocation of families living along dangerous
zones under the National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko
Sentral;
(vii) P5.4 billion landowners compensation under the Department of
Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development
program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under
the Department of Tourism and the Department of Public Works and
Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health
units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects. 166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted for
because the funds were released following and pursuant to the standard
practices adopted by the DBM. 167 In support of its argument, the OSG has
submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under
the DAP.168
Aside from this transfer under the DAP to the DREAM project exceeding by
almost 300% the appropriation by Congress for the program Generation of new
knowledge and technologies and research capability building in priority areas
identified as strategic to National Development, the Executive allotted funds
for personnel services and capital outlays. The Executive thereby substituted
its will to that of Congress. Worse, the Executive had not earlier proposed any
amount for personnel services and capital outlays in the NEP that became the
basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside
any amounts for an expense category sufficiently indicated that Congress
purposely did not see fit to fund, much less implement, the PAP concerned.
This indication becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs
could only be a new PAP, any funding for which would go beyond the authority
laid down by Congress in enacting the GAAs. That happened in some instances
under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for
Industry, Energy and Emerging Technology Research and Development (DOSTPCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory,
which reads:
the appropriation code and the particulars appearing in the SARO did not
correspond to the program specified in the GAA, whose particulars were
Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities; (2)
Dissemination of Science and Technology Information; and (3) Management of
PCIERD Information System for Industry, Energy and Utilities. Even assuming
that Development, integration and coordination of the National Research
System for Industry, Energy and Emerging Technology and Related Fields the
particulars stated in the SARO could fall under the broad program description
of Research and Management Services as appearing in the SARO, it would
nonetheless remain a new activity by reason of its not being specifically stated
in the GAA. As such, the DBM, sans legislative authorization, could not validly
fund and implement such PAP under the DAP.
These cross border examples, cross border augmentations were not supported
by appropriations
The respondents further stated in their memorandum that the President "made
available" to the "Commission on Elections the savings of his department upon
[its] request for funds"187 This was another instance of a cross-border
augmentation.
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and
the tenor or text of the Constitution is quite clear as far as I am concerned. It
says here, "The power to augment may only be made to increase any item in
the General Appropriations Law for their respective offices." Did you not feel
constricted by this provision?
99. The Constitution does not prevent the President from transferring savings
of his department to another department upon the latters request, provided it
is the recipient department that uses such funds to augment its own
appropriation. In such a case, the President merely gives the other department
access to public funds but he cannot dictate how they shall be applied by that
department whose fiscal autonomy is guaranteed by the Constitution. 188
SECRETARY ABAD:
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of
appropriations, Your Honor. What we thought we did was to transfer savings
which was needed by the Commission to address deficiency in an existing item
in both the Commission as well as in the House of Representatives; thats how
we saw(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, thats your
feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the
Commission and the House of Representatives, we felt that we needed to
respond because we felt(interrupted).183
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza,
representing Congress, announced a different characterization of the crossborder transfers of funds as in the nature of "aid" instead of "augmentation,"
viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the
DAP. What were these cross-border transfers? They are transfers of savings as
defined in the various General Appropriations Act. So, that makes it similar to
the DAP, the use of savings. There was a cross-border which appears to be in
violation of Section 25, paragraph 5 of Article VI, in the sense that the border
was crossed. But never has it been claimed that the purpose was to augment a
deficient item in another department of the government or agency of the
government. The cross-border transfers, if Your Honors please, were in the
nature of [aid] rather than augmentations. Here is a government entity
separate and independent from the Executive Department solely in need of
public funds. The President is there 24 hours a day, 7 days a week. Hes in
charge of the whole operation although six or seven heads of government
offices are given the power to augment. Only the President stationed there and
in effect in-charge and has the responsibility for the failure of any part of the
government. You have election, for one reason or another, the money is not
enough to hold election. There would be chaos if no money is given as an aid,
not to augment, but as an aid to a department like COA. The President is
responsible in a way that the other heads, given the power to augment, are
not. So, he cannot very well allow this, if Your Honor please. 189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that the position
now, I think, of government is that some transfers of savings is now considered
to be, if Im not mistaken, aid not augmentation. Am I correct in my hearing of
your argument?
HONORABLE MENDOZA:
Thats our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution?
Where do we actually derive the concepts that transfers of appropriation from
one branch to the other or what happened in DAP can be considered a said?
What particular text in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your
Honor please. It is drawn from the fact that the Executive is the executive incharge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for
this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might be to go to
Congress. That there are opportunities and there have been opportunities of
the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary
situation?
HONORABLE MENDOZA:
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded
targets,
and
when
additional
foreign
funds
are
generated.194 Contrary to the DBMs averment that there were three instances
when unprogrammed funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM the collection of new revenues
from sources not originally considered in the BESFs was not included. This
meant that the collection of additional revenues from new sources did not
warrant the release of the unprogrammed funds. Hence, even if the revenues
not considered in the BESFs were collected or generated, the basic condition
that the revenue collections should exceed the revenue targets must still be
complied with in order to justify the release of the unprogrammed funds.
may be used to cover releases from appropriations in this Fund" gave the
authority to use such additional revenues for appropriations funded from the
unprogrammed funds. They did not at all waive compliance with the basic
requirement that revenue collections must still exceed the original revenue
targets.
The view that there were only two instances when the unprogrammed funds
could be released was bolstered by the following texts of the Special Provisions
of the 2011 and 2012 GAAs, to wit:
It can be inferred from the foregoing that under these provisions of the GAAs
the additional revenues from sources not considered in the BESFs must be
taken into account in determining if the revenue collections exceeded the
revenue targets. The text of the relevant provision of the 2013 GAA, which was
substantially similar to those of the GAAs for 2011 and 2012, already made
this explicit, thus:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when
the revenue collections exceed the original revenue targets submitted by the
President of the Philippines to Congress pursuant to Section 22, Article VII of
the Constitution, including savings generated from programmed appropriations
for the year: PROVIDED, That collections arising from sources not considered in
the aforesaid original revenue targets may be used to cover releases from
appropriations in this Fund: PROVIDED, FURTHER, That in case of newly
approved loans for foreign-assisted projects, the existence of a perfected loan
agreement for the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are
savings generated from the programmed appropriations for the first two
quarters of the year, the DBM may, subject to the approval of the President,
release the pertinent appropriations under the Unprogrammed Fund
corresponding to only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance of the total
savings from programmed appropriations for the year shall be subject to fiscal
programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of
newly approved loans for foreign-assisted projects, the existence of a
perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections
arising from sources not considered in the aforesaid original revenue targets
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including collections arising from sources not considered in
the aforesaid original revenue target, as certified by the BTr: PROVIDED, That
in case of newly approved loans for foreign-assisted projects, the existence of
a perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
Consequently, that there were additional revenues from sources not
considered in the revenue target would not be enough. The total revenue
collections must still exceed the original revenue targets to justify the release
of the unprogrammed funds (other than those from newly-approved foreign
loans).
The present controversy on the unprogrammed funds was rooted in the correct
interpretation of the phrase "revenue collections should exceed the original
revenue targets." The petitioners take the phrase to mean that the total
revenue collections must exceed the total revenue target stated in the BESF,
but the respondents understand the phrase to refer only to the collections for
each source of revenue as enumerated in the BESF, with the condition being
deemed complied with once the revenue collections from a particular source
already exceeded the stated target.
The BESF provided for the following sources of revenue, with
corresponding revenue target stated for each source of revenue, to wit:
TAX REVENUES
the
Taxes
on
Net
Income
Taxes
on
Taxes on Domestic Goods and Services
General
Sales,
Selected Excises on Goods
and
Turnover
or
Profits
Property
This is to certify that under the Budget for Expenditures and Sources of
Financing for 2011, the programmed income from dividends from shares of
stock in government-owned and controlled corporations is 5.5 billion.
VAT
This is to certify further that based on the records of the Bureau of Treasury,
the National Government has recorded dividend income amounting to P23.8
billion as of 31 January 2011.196
Selected
Taxes
on
Services
Taxes on the Use of Goods or Property or Permission to Perform
Activities
Other
Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees
BTR Income
and
Government
Interest
on
Interest
on
Advances
Income from Investments
to
NG
Government
This is to certify that the actual dividend collections remitted to the National
Government for the period January to March 2012 amounted to P19.419 billion
compared to the full year program of P5.5 billion for 2012.197
Charges
And, finally, for 2013, the OSG presented the certification dated July 3, 2013
issued by National Treasurer Rosalia V. De Leon, to wit:
Services
Deposits
Corporations
This is to certify that the actual dividend collections remitted to the National
Government for the period January to May 2013 amounted to P12.438 billion
compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build
and operate the NAIA expressway amounting to P11.0 billion in June 2013.199
For 2012, the OSG submitted the certification dated April 26, 2012 issued by
National Treasurer Roberto B. Tan, viz:
Foreign
Fee
Exchange
Dividends
on
Stocks
NG
Share
from
Airport
Terminal
Fee
NG
Share
from
PAGCOR
Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from
the Bureau of Treasury (BTr) to the effect that the revenue collections had
exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to only
one identified source of revenue the dividends from the shares of stock held
by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented
the certification dated March 4, 2011 issued by DOF Undersecretary Gil S.
Beltran, as follows:
be understood to mean that the revenue collections must exceed the total of
the revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess revenue as to one
source of revenue would be an unsound fiscal management measure because
it would disregard the budget plan and foster budget deficits, in contravention
of the Governments surplus budget policy. 202
We cannot, therefore, subscribe to the respondents view.
5.
Equal
protection,
checks
and public accountability challenges
and
balances,
The DAP is further challenged as violative of the Equal Protection Clause, the
system of checks and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail themselves
of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the funds
under the DAP; and that the Senators who supposedly availed themselves of
said funds were differently treated as to the amounts they respectively
received.
Anent the petitioners theory that the DAP violated the system of checks and
balances, Luna submits that the grant of the funds under the DAP to some
legislators forced their silence about the issues and anomalies surrounding the
DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to
identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive;
that such situation constituted undue and unjustified legislative encroachment
in the functions of the Executive; and that the President arrogated unto himself
the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the
2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution, 204 because the legislators
relinquished the power of appropriation to the Executive, and exhibited a
reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in
the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the violation
of the Equal Protection Clause was really against the constitutionality of the
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm,
we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional
cannot give rise to any right or obligation. 206 However, the generality of the
rule makes us ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to except from
the rigid application of the rule the instances in which the void law or
executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely
not a novel one, has been exhaustively explained in De Agbayani v. Philippine
National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise
suffering from that infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: When the
courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern. Administrative or executive acts, orders
and regulations shall be valid only when they are not contrary to the laws of
the Constitution. It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the
judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have
changed their positions. What could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative or
We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what executive act mean. Moreover, while orders,
rules and regulations issued by the President or the executive branch have
fixed definitions and meaning in the Administrative Code and jurisprudence,
the phrase executive act does not have such specific definition under existing
laws. It should be noted that in the cases cited by the minority, nowhere can it
be found that the term executive act is confined to the foregoing. Contrarily,
the term executive act is broad enough to encompass decisions of
administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as
Chairman of the Presidential Commission on Good Government (PCGG) and as
Chief Presidential Legal Counsel (CPLC) which was declared unconstitutional by
this Court in Public Interest Center, Inc. v. Elma. In said case, this Court ruled
that the concurrent appointment of Elma to these offices is in violation of
Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are
incompatible offices. Notably, the appointment of Elma as Chairman of the
PCGG and as CPLC is, without a question, an executive act. Prior to the
declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of
Elma which cannot just be set aside or invalidated by its subsequent
invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that
despite the invalidity of the jurisdiction of the military courts over civilians,
certain operative facts must be acknowledged to have existed so as not to
trample upon the rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that military tribunals pertain to the
Executive Department of the Government and are simply instrumentalities of
the executive power, provided by the legislature for the President as
Commander-in-Chief to aid him in properly commanding the army and navy
and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives.
Evidently, the operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are accorded the same
status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine
only to executive issuances like orders and rules and regulations, said principle
can nonetheless be applied, by analogy, to decisions made by the President or
the agencies under the executive department. This doctrine, in the interest of
justice and equity, can be applied liberally and in a broad sense to encompass
said decisions of the executive branch. In keeping with the demands of equity,
the Court can apply the operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act which is quasilegislative in nature but also on decisions or orders of the executive branch
which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and
fairness.
SO ORDERED.
The other side of the coin is that it has been adequately shown as to be
beyond debate that the implementation of the DAP yielded undeniably positive
results that enhanced the economic welfare of the country. To count the
positive results may be impossible, but the visible ones, like public
infrastructure, could easily include roads, bridges, homes for the homeless,
hospitals, classrooms and the like. Not to apply the doctrine of operative fact
to the DAP could literally cause the physical undoing of such worthy results by
destruction, and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a
valid law would result in inequity and injustice; 212but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective
should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and
prohibition; and DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of
Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation
of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing
agencies, and the declaration of the withdrawn unobligated allotments
and unreleased appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of savings
contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to
augment the appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the
absence of a certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
On the one hand, the Malampaya Funds was created as a special fund
under Section 880 of Presidential Decree No. (PD) 910,81 issued by then
President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting
the said law, Marcos recognized the need to set up a special fund to
help intensify, strengthen, and consolidate government efforts relating
to the exploration, exploitation, and development of indigenous
energy resources vital to economic growth. 82 Due to the energyrelated activities of the government in the Malampaya natural gas
field in Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD 910 has been currently
labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under
Section 12, Title IV84 of PD 1869,85 or the Charter of the Philippine
Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly
issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31,
1985,86 amending Section 1287 of the former law. As it stands, the
Presidential Social Fund has been described as a special funding
facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority
programs and projects not funded under the regular budget. It is
sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased
tremendously,89 owing in no small part to previous Presidents who
reportedly used the "Pork Barrel" in order to gain congressional
support.90 It was in 1996 when the first controversy surrounding the
"Pork Barrel" erupted. Former Marikina City Representative Romeo
Candazo (Candazo), then an anonymous source, "blew the lid on the
huge sums of government money that regularly went into the pockets
of legislators in the form of kickbacks." 91 He said that "the kickbacks
were SOP (standard operating procedure) among legislators and
ranged from a low 19 percent to a high 52 percent of the cost of each
project, which could be anything from dredging, rip rapping, sphalting,
concreting, and construction of school buildings." 92 "Other sources of
kickbacks that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of
August 13, 1996, accompanied by an illustration of a roasted
pig."93 "The publication of the stories, including those about
congressional
initiative
allocations
of
certain
lawmakers,
including P3.6 Billion for a Congressman, sparked public outrage." 94
Thereafter, or in 2004, several concerned citizens sought the
nullification of the PDAF as enacted in the 2004 GAA for being
unconstitutional. Unfortunately, for lack of "any pertinent evidentiary
support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress,"
the petition was dismissed.95
Eighty-Two
(82)
NGOs
entrusted
with
implementation of seven hundred seventy two (772)
projects amount to P6.156 Billion were either found
questionable, or submitted questionable/spurious
documents, or failed to liquidate in whole or in part
their utilization of the Funds.
Procurement by the NGOs, as well as some
implementing agencies, of goods and services
reportedly used in the projects were not compliant
with law.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a
Consolidated Comment (Comment) of even date before the Court, seeking the
lifting, or in the alternative, the partial lifting with respect to educational and
medical assistance purposes, of the Courts September 10, 2013 TRO, and that
the consolidated petitions be dismissed for lack of merit. 113
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel
Laws similar thereto are unconstitutional considering that they violate the
principles of/constitutional provisions on (a) separation of powers; (b) nondelegability of legislative power; (c) checks and balances; (d) accountability;
(e) political dynasties; and (f) local autonomy.
On September 24, 2013, the Court issued a Resolution of even date directing
petitioners to reply to the Comment.
Whether or not the phrases (a) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of PD 910, 116 relating to
the Malampaya Funds, and (b) "to finance the priority infrastructure
development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of
the President of the Philippines" under Section 12 of PD 1869, as amended by
PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar
as they constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In
addition, the Court shall also tackle certain ancillary issues as prompted by the
present cases.
The Courts Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless there is compliance with the legal requisites for
judicial inquiry,117 namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota of the
case.118 Of these requisites, case law states that the first two are the most
important119and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case
or controversy.120 This is embodied in Section 1, Article VIII of the 1987
Constitution which pertinently states that "judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable x x x." Jurisprudence provides that an
actual case or controversy is one which "involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. 121 In other
words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence." 122 Related to the
will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the
project, he has the power to stop the releases in the meantime, to investigate,
and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative
Code128 x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the
specific case of the PDAF because of the CoA Report, because of the reported
irregularities and this Court can take judicial notice, even outside, outside of
the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty .
xxxx
Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are
anomalies, you stop and investigate, and prosecute, he has done that. But,
does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases.
Congress passes a law to repeal it, or this Court declares it unconstitutional,
correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases
supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates
that "the moot and academic principle is not a magical formula that can
automatically dissuade the Court in resolving a case." The Court will decide
cases, otherwise moot, if: first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading review. 129
The applicability of the first exception is clear from the fundamental posture of
petitioners they essentially allege grave violations of the Constitution with
respect to, inter alia, the principles of separation of powers, non-delegability of
legislative power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of
the interests involved
Finally, the application of the fourth exception is called for by the recognition
that the preparation and passage of the national budget is, by constitutional
imprimatur, an affair of annual occurrence. 133 The relevance of the issues
before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to
petitioners claim that "the same dog will just resurface wearing a different
collar."135 In Sanlakas v. Executive Secretary, 136 the government had already
backtracked on a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "to prevent similar questions
from re- emerging."137 The situation similarly holds true to these cases. Indeed,
the myriad of issues underlying the manner in which certain public funds are
spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The COA is endowed with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or unconscionable expenditures
of government funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our
form of government.
It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created, such as the CoA,
not only on the basis of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when
the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and
justiciable controversy in these cases, the Court deems the findings under the
CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the
practical need for a definitive ruling on the systems constitutionality. As
disclosed during the Oral Arguments, the CoA Chairperson estimates that
thousands of notices of disallowances will be issued by her office in connection
with the findings made in the CoA Report. In this relation, Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these
would eventually find their way to the courts. 132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised
herein in order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but more
such lower courts as may be established by law. It includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." In Estrada v.
Desierto,142 the expanded concept of judicial power under the 1987
Constitution and its effect on the political question doctrine was explained as
follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of this
court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of government. Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts
are given a greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; does not in reality nullify or invalidate an act of the legislature or
the executive, but only asserts the solemn and sacred obligation assigned to it
by the Constitution."144 To a great extent, the Court is laudably cognizant of the
reforms undertaken by its co-equal branches of government. But it is by
constitutional force that the Court must faithfully perform its duty. Ultimately,
it is the Courts avowed intention that a resolution of these cases would not
arrest or in any manner impede the endeavors of the two other branches but,
in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch
of government, within its own sphere, contributes its share towards achieving
a holistic and genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the operation of
statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizentaxpayers and accordingly, assert that they "dutifully contribute to the coffers
of the National Treasury."146 Clearly, as taxpayers, they possess the requisite
standing to question the validity of the existing "Pork Barrel System" under
which the taxes they pay have been and continue to be utilized. It is
undeniable that petitioners, as taxpayers, are bound to suffer from the
even though the parties may be different. It proceeds from the first principle of
justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the
same event have been put forward by the parties similarly situated as in a
previous case litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to re-litigate the same issue. 153
Philconsa was the first case where a constitutional challenge against a Pork
Barrel provision, i.e., the 1994 CDF Article, was resolved by the Court. To
properly understand its context, petitioners posturing was that "the power
given to the Members of Congress to propose and identify projects and
activities to be funded by the CDF is an encroachment by the legislature on
executive power, since said power in an appropriation act is in implementation
of the law" and that "the proposal and identification of the projects do not
involve the making of laws or the repeal and amendment thereof, the only
function given to the Congress by the Constitution." 154 In deference to the
foregoing submissions, the Court reached the following main conclusions: one,
under the Constitution, the power of appropriation, or the "power of the
purse," belongs to Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the appropriation
law and it can be detailed and as broad as Congress wants it to be; and, three,
the proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a
limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF Articles with
each other, formative as they are of the entire "Pork Barrel System" as well as
(b) the intra-relation of post-enactment measures contained within a particular
CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may
be, therefore, considered as a powerful countervailing reason against a
wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled
with inherent constitutional inconsistencies which similarly countervail against
a full resort to stare decisis. As may be deduced from the main conclusions of
the case, Philconsas fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said identification authority
is but an aspect of the power of appropriation which has been constitutionally
lodged in Congress. From this premise, the contradictions may be easily seen.
If the authority to identify projects is an aspect of appropriation and the power
of appropriation is a form of legislative power thereby lodged in Congress, then
it follows that: (a) it is Congress which should exercise such authority, and not
its individual Members; (b) such authority must be exercised within the
prescribed procedure of law passage and, hence, should not be exercised after
the GAA has already been passed; and (c) such authority, as embodied in the
GAA, has the force of law and, hence, cannot be merely recommendatory.
Justice Vitugs Concurring Opinion in the same case sums up the Philconsa
quandary in this wise: "Neither would it be objectionable for Congress, by law,
to appropriate funds for such specific projects as it may be minded; to give
that authority, however, to the individual members of Congress in whatever
First, there is the Congressional Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund wherein legislators, either individually or
collectively organized into committees, are able to effectively control certain
aspects of the funds utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears
under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a postenactment measure that allows individual legislators to wield a collective
power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind
of lump-sum, discretionary fund which allows the President to determine the
manner of its utilization. For reasons earlier stated, 161 the Court shall delimit
the use of such term to refer only to the Malampaya Funds and the Presidential
Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the
substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation
of the three fundamental powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission, 162 it means that the
"Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the
government."163 To
the
legislative
branch of
government,
through
Congress,164belongs the power to make laws; to the executive branch of
government, through the President, 165 belongs the power to enforce laws; and
to the judicial branch of government, through the Court, 166 belongs the power
to interpret laws. Because the three great powers have been, by constitutional
design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere."167 Thus, "the legislature has no authority to execute or
construe the law, the executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the law." 168 The principle of
separation of powers and its concepts of autonomy and independence stem
from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches
or the citizenry.169 To achieve this purpose, the divided power must be wielded
by co-equal branches of government that are equally capable of independent
action in exercising their respective mandates. Lack of independence would
result in the inability of one branch of government to check the arbitrary or
self-interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle
when one branch of government unduly encroaches on the domain of another.
various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies
the program menu feature which, as evinced from past PDAF Articles, allows
individual legislators to identify PDAF projects for as long as the identified
project falls under a general program listed in the said menu. Relatedly,
Special Provision 2 provides that the implementing agencies shall, within 90
days from the GAA is passed, submit to Congress a more detailed priority list,
standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further
authorizes legislators to identify PDAF projects outside his district for as long
as the representative of the district concerned concurs in writing. Meanwhile,
Special Provision 3 clarifies that PDAF projects refer to "projects to be identified
by legislators"188 and thereunder provides the allocation limit for the total
amount of projects identified by each legislator. Finally, paragraph 2 of Special
Provision 4 requires that any modification and revision of the project
identification "shall be submitted to the House Committee on Appropriations
and the Senate Committee on Finance for favorable endorsement to the DBM
or the implementing agency, as the case may be." From the foregoing special
provisions, it cannot be seriously doubted that legislators have been accorded
post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been
accorded post-enactment authority in the areas of fund release and
realignment. Under the 2013 PDAF Article, the statutory authority of legislators
to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for
release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations
and the Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund realignment is contained
in: first , paragraph 2, Special Provision 4 189 which explicitly state s, among
others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case
may be ; and, second , paragraph 1, also of Special Provision 4 which
authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and Highways, Social
Welfare and Development and Trade and Industry 190 x x x to approve
realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed,
by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in as Guingona, Jr. puts it "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of
the separation of powers principle. The fundamental rule, as categorically
implement, there is a need for a SARO and the NCA. And the SARO and the
NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we
were replying to a question, "How can a legislator make sure that he is able to
get PDAF Funds?" It is mandatory in the sense that he must identify, in that
sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the
PDAF Funds and his district would not be able to have PDAF Funds, only in that
sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF
Article as well as all other provisions of law which similarly allow legislators to
wield any form of post-enactment authority in the implementation or
enforcement of the budget, unrelated to congressional oversight, as violative
of the separation of powers principle and thus unconstitutional. Corollary
thereto, informal practices, through which legislators have effectively intruded
into the proper phases of budget execution, must be deemed as acts of grave
abuse of discretion amounting to lack or excess of jurisdiction and, hence,
accorded the same unconstitutional treatment. That such informal practices do
exist and have, in fact, been constantly observed throughout the years has not
been substantially disputed here. As pointed out by Chief Justice Maria Lourdes
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2)
Houses of Congress, if we enforces the initial thought that I have, after I had
seen the extent of this research made by my staff, that neither the Executive
nor Congress frontally faced the question of constitutional compatibility of how
they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also
been using is surprise; surprised that all of these things are now surfacing. In
fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense,
we should be thankful that they are all now in the PDAF Special Provisions. x x
x (Emphasis and underscoring supplied)
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done
and then there is no identification.
Ultimately, legislators cannot exercise powers which they do not have, whether
through formal measures written into the law or informal practices
institutionalized in government agencies, else the Executive department be
deprived of what the Constitution has vested as its own.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?
a. Statement of Principle.
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I
have no specific examples. I would doubt very much, Your Honor, because to
Justice and Insular Auditor 202 (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue
for (b) a specified purpose. Essentially, under the 2013 PDAF Article, individual
legislators are given a personal lump-sum fund from which they are able to
dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts
comprise the exercise of the power of appropriation as described in Bengzon,
and given that the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been conferred the
power to legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative power, the Court
hereby declares the 2013 PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar legislative identification
feature as herein discussed, as unconstitutional.
3. Checks and Balances.
xxxx
Sec. 27. x x x.
xxxx
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it
confers post-enactment identification authority to individual legislators,
violates the principle of non-delegability since said legislators are effectively
allowed to individually exercise the power of appropriation, which as settled
in Philconsa is lodged in Congress. 201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of
(2) The President shall have the power to veto any particular item or items in
an appropriation, revenue, or tariff bill, but the veto shall not affect the item or
items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President,
wherein he may exercise his power of item-veto, forms part of the "single,
finely wrought and exhaustively considered, procedures" for law-passage as
specified under the Constitution.204 As stated in Abakada, the final step in the
law-making process is the "submission of the bill to the President for approval.
Once approved, it takes effect as law after the required publication." 205
Elaborating on the Presidents item-veto power and its relevance as a check on
the legislature, the Court, in Bengzon, explained that: 206
The former Organic Act and the present Constitution of the Philippines make
the Chief Executive an integral part of the law-making power. His disapproval
of a bill, commonly known as a veto, is essentially a legislative act. The
questions presented to the mind of the Chief Executive are precisely the same
as those the legislature must determine in passing a bill, except that his will be
a broader point of view.
The Constitution is a limitation upon the power of the legislative department of
the government, but in this respect it is a grant of power to the executive
department. The Legislature has the affirmative power to enact laws; the Chief
Executive has the negative power by the constitutional exercise of which he
may defeat the will of the Legislature. It follows that the Chief Executive must
find his authority in the Constitution. But in exercising that authority he may
not be confined to rules of strict construction or hampered by the unwise
interference of the judiciary. The courts will indulge every intendment in favor
of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases
supplied)
The justification for the Presidents item-veto power rests on a variety of policy
goals such as to prevent log-rolling legislation, 207 impose fiscal restrictions on
the legislature, as well as to fortify the executive branchs role in the
budgetary process.208 In Immigration and Naturalization Service v. Chadha, the
US Supreme Court characterized the Presidents item-power as "a salutary
check upon the legislative body, calculated to guard the community against
the effects of factions, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body"; phrased
differently, it is meant to "increase the chances in favor of the community
against the passing of bad laws, through haste, inadvertence, or design." 209
For the President to exercise his item-veto power, it necessarily follows that
there exists a proper "item" which may be the object of the veto. An item, as
defined in the field of appropriations, pertains to "the particulars, the details,
the distinct and severable parts of the appropriation or of the bill." In the case
of Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme
Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a
specific appropriation of money, not some general provision of law which
happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that
the President may be able to exercise his power of item veto, must contain
"specific appropriations of money" and not only "general provisions" which
provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an
item characterized by singular correspondence meaning an allocation of a
specified singular amount for a specified singular purpose, otherwise known as
a "line-item."211 This treatment not only allows the item to be consistent with
its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation,
the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being
appropriations which state a specified amount for a specific purpose, would
then be considered as "line- item" appropriations which are rightfully subject to
item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that
each percentage or value must be allocated for its own corresponding purpose
for such component to be considered as a proper line-item. Moreover, as
Justice Carpio correctly pointed out, a valid appropriation may even have
several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed sufficiently
specific for the exercise of the Presidents item veto power. Finally, special
purpose funds and discretionary funds would equally square with the
constitutional mechanism of item-veto for as long as they follow the rule on
singular correspondence as herein discussed. Anent special purpose funds, it
must be added that Section 25(4), Article VI of the 1987 Constitution requires
that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the
National Treasurer, or t o be raised by a corresponding revenue proposal
therein." Meanwhile, with respect to discretionary funds, Section 2 5(6), Article
VI of the 1987 Constitution requires that said funds "shall be disbursed only for
public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which
merely provide for a singular lump-sum amount to be tapped as a source of
funding for multiple purposes. Since such appropriation type necessitates the
further determination of both the actual amount to be expended and the
actual purpose of the appropriation which must still be chosen from the
multiple purposes stated in the law, it cannot be said that the appropriation
law already indicates a "specific appropriation of money and hence, without a
proper line-item which the President may veto. As a practical result, the
President would then be faced with the predicament of either vetoing the
entire appropriation if he finds some of its purposes wasteful or undesirable, or
approving the entire appropriation so as not to hinder some of its legitimate
purposes. Finally, it may not be amiss to state that such arrangement also
raises non-delegability issues considering that the implementing authority
would still have to determine, again, both the actual amount to be expended
and the actual purpose of the appropriation. Since the foregoing
determinations constitute the integral aspects of the power to appropriate, the
implementing authority would, in effect, be exercising legislative prerogatives
in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the
PDAF is a lump-sum appropriation, the legislators identification of the projects
after the passage of the GAA denies the President the chance to veto that item
later on."212 Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item budgeting" and
that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless." 213
On the other hand, respondents maintain that the text of the Constitution
envisions a process which is intended to meet the demands of a modernizing
economy and, as such, lump-sum appropriations are essential to financially
address situations which are barely foreseen when a GAA is enacted. They
argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded. 214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided
among individual legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively appropriate PDAF
funds based on their own discretion. As these intermediate appropriations are
made by legislators only after the GAA is passed and hence, outside of the law,
it necessarily means that the actual items of PDAF appropriation would not
have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a
budget" which subverts the prescribed procedure of presentment and
consequently impairs the Presidents power of item veto. As petitioners aptly
point out, the above-described system forces the President to decide between
(a) accepting the entire P24.79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may not be consistent with his
national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature,
the 2013 PDAF Article would remain constitutionally flawed since it would then
operate as a prohibited form of lump-sum appropriation above-characterized.
In particular, the lump-sum amount of P24.79 Billion would be treated as a
mere funding source allotted for multiple purposes of spending, i.e.,
scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes
of the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the Presidents power of
item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has,
as the CoA Chairperson relays, "limited state auditors from obtaining relevant
data and information that would aid in more stringently auditing the utilization
of said Funds."216 Accordingly, she recommends the adoption of a "line by line
budget or amount per proposed program, activity or project, and per
implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF
Article, as well as all Congressional Pork Barrel Laws of similar operation, to be
unconstitutional. That such budgeting system provides for a greater degree of
flexibility to account for future contingencies cannot be an excuse to defeat
what the Constitution requires. Clearly, the first and essential truth of the
In any event, the Court finds the above-stated argument on this score to be
largely speculative since it has not been properly demonstrated how the Pork
Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The States policy on local autonomy is principally stated in Section 25, Article
II and Sections 2 and 3, Article X of the 1987 Constitution which read as
follows:
ARTICLE II
The Court, however, cannot completely agree that the same post-enactment
authority and/or the individual legislators control of his PDAF per se would
allow him to perpetuate himself in office. Indeed, while the Congressional Pork
Barrel and a legislators use thereof may be linked to this area of interest, the
use of his PDAF for re-election purposes is a matter which must be analyzed
based on particular facts and on a case-to-case basis.
Sec. 25. The State shall ensure the autonomy of local governments.
Finally, while the Court accounts for the possibility that the close operational
proximity between legislators and the Executive department, through the
formers post-enactment participation, may affect the process of
impeachment, this matter largely borders on the domain of politics and does
not strictly concern the Pork Barrel Systems intrinsic constitutionality. As such,
it is an improper subject of judicial assessment.
Sec. 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and
operation of the local units.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Pursuant thereto, Congress enacted RA 7160, 227 otherwise known as the "Local
Government Code of 1991" (LGC), wherein the policy on local autonomy had
been more specifically explicated as follows:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State
that the territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government
units shall be given more powers, authority, responsibilities, and resources.
The process of decentralization shall proceed from the National Government to
the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, nongovernmental and peoples organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy
of the State to empower local government units (LGUs) to develop and
ultimately, become self-sustaining and effective contributors to the national
economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the
Constitution to the policy of local autonomy which is intended to provide the
needed impetus and encouragement to the development of our local political
subdivisions as "self - reliant communities." In the words of Jefferson,
"Municipal corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will enable their
inhabitants to fully exploit their resources and more important, imbue them
with a deepened sense of involvement in public affairs as members of the
body politic. This objective could be blunted by undue interference by the
national government in purely local affairs which are best resolved by the
officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes
against the constitutional principles on local autonomy since it allows district
representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development. 230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal"
and that "it is also a recognition that individual members of Congress, far more
than the President and their congressional colleagues, are likely to be
knowledgeable about the needs of their respective constituents and the
priority to be given each project." 231 Drawing strength from this
pronouncement, previous legislators justified its existence by stating that "the
relatively small projects implemented under the Congressional Pork Barrel
complement and link the national development goals to the countryside and
grassroots as well as to depressed areas which are overlooked by central
agencies which are preoccupied with mega-projects. 232 Similarly, in his August
23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President
Aquino mentioned that the Congressional Pork Barrel was originally established
for a worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford. 233
Notwithstanding these declarations, the Court, however, finds an inherent
defect in the system which actually belies the avowed intention of "making
equal the unequal." In particular, the Court observes that the gauge of PDAF
and CDF allocation/division is based solely on the fact of office, without taking
into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a
highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what rouses graver scrutiny
is that even Senators and Party-List Representatives and in some years, even
the Vice-President who do not represent any locality, receive funding from
the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrels original intent which is "to make equal the
unequal." Ultimately, the PDAF and CDF had become personal funds under the
effective control of each legislator and given unto them on the sole account of
their office.
The Court also observes that this concept of legislator control underlying the
CDF and PDAF conflicts with the functions of the various Local Development
Councils (LDCs) which are already legally mandated to "assist the
corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions
are essentially geared towards managing local affairs, 235 their programs,
policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except
only when acting as a body. The undermining effect on local autonomy caused
by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council
and initiate projects on his own, and even take sole credit for its execution.
Indeed, this type of personality-driven project identification has not only
contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination
efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely
local matters and thereby subvert genuine local autonomy, the 2013 PDAF
Article as well as all other similar forms of Congressional Pork Barrel is deemed
unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now
turns to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869
(now, amended by PD 1993), which respectively provide for the Malampaya
Funds and the Presidential Social Fund, as invalid appropriations laws since
they do not have the "primary and specific" purpose of authorizing the release
of public funds from the National Treasury. Petitioners submit that Section 8 of
PD 910 is not an appropriation law since the "primary and specific purpose of
PD 910 is the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto. 237 In similar regard, petitioners
argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary
and specific" purpose of PD 1869 which is the amendment of the Franchise and
same for a particular public purpose, then the legislative intent to appropriate
becomes apparent and, hence, already sufficient to satisfy the requirement of
an "appropriation made by law" under contemplation of the Constitution.
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including
receipts from service contracts and agreements such as application and
processing fees, signature bonus, discovery bonus, production bonus; all
money collected from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service
contracts and similar payments on the exploration, development and
exploitation of energy resources, shall form part of a Special Fund to be used
to finance energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter
directed by the President. (Emphases supplied)
beyond the purview of the law. That the subject phrase may be confined only
to "energy resource development and exploitation programs and projects of
the government" under the principle of ejusdem generis, meaning that the
general word or phrase is to be construed to include or be restricted to
things akin to, resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government"
states a singular and general class and hence, cannot be treated as a statutory
reference of specific things from which the general phrase "for such other
purposes" may be limited; second, the said phrase also exhausts the class it
represents, namely energy development programs of the government; 250 and,
third, the Executive department has, in fact, used the Malampaya Funds for
non-energy related purposes under the subject phrase, thereby contradicting
respondents own position that it is limited only to "energy resource
development
and
exploitation
programs
and
projects
of
the
government."251 Thus, while Section 8 of PD 910 may have passed the
completeness test since the policy of energy development is clearly deducible
from its text, the phrase "and for such other purposes as may be hereafter
directed by the President" under the same provision of law should nonetheless
be stricken down as unconstitutional as it lies independently unfettered by any
sufficient standard of the delegating law. This notwithstanding, it must be
underscored that the rest of Section 8, insofar as it allows for the use of the
Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and
subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya Funds would
be used as it should be used only in accordance with the avowed purpose
and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact
that Section 12 of PD 1869 has already been amended by PD 1993 which thus
moots the parties submissions on the same. 252 Nevertheless, since the
amendatory provision may be readily examined under the current parameters
of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the
Presidential Social Fund may be used "to first, finance the priority
infrastructure development projects and second, to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds
that while the second indicated purpose adequately curtails the authority of
the President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure
project he may so determine as a "priority". Verily, the law does not supply a
definition of "priority in frastructure development projects" and hence, leaves
the President without any guideline to construe the same. To note, the
delimitation of a project as one of "infrastructure" is too broad of a
classification since the said term could pertain to any kind of facility. This may
be deduced from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities (such as
highways, schools, bridges, sewers, and water-systems) needed to support
commerce as well as economic and residential development." 253 In fine, the
The decisive question on the propriety of the issuance of the writ of mandamus
in this case is, whether the information sought by the petitioner is within the
ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been
clarified that the right to information does not include the right to compel the
preparation of "lists, abstracts, summaries and the like." In the same case, it
was stressed that it is essential that the "applicant has a well -defined, clear
and certain legal right to the thing demanded and that it is the imperative duty
of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information.
The pertinent portions of Valmonte are hereunder quoted: 258
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord
them a right to compel custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire information on matters of
public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act
required. The corresponding duty of the respondent to perform the required
act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty
on the part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature
of mandamus actions, the Court finds that petitioners have failed to establish a
"a well-defined, clear and certain legal right" to be furnished by the Executive
Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latters duty to
furnish them with the documents requested. While petitioners pray that said
information be equally released to the CoA, it must be pointed out that the
CoA has not been impleaded as a party to these cases nor has it filed any
petition before the Court to be allowed access to or to compel the release of
any official document relevant to the conduct of its audit investigations. While
Petitioners take issue with the foregoing circular, arguing that "the issuance of
the SARO does not yet involve the release of funds under the PDAF, as release
is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]." 261 As
such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.
For their part, respondents espouse that the subject TRO only covers
"unreleased and unobligated allotments." They explain that once a SARO has
been issued and obligated by the implementing agency concerned, the PDAF
funds covered by the same are already "beyond the reach of the TRO because
they cannot be considered as remaining PDAF." They conclude that this is a
reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Courts
September 10, 2013 TRO should be lifted is a matter rendered moot by the
present Decision. The unconstitutionality of the 2013 PDAF Article as declared
herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of
the remaining PDAF funds for 2013, among others, is now permanently
enjoined.
The propriety of the DBMs interpretation of the concept of "release" must,
nevertheless, be resolved as it has a practical impact on the execution of the
current Decision. In particular, the Court must resolve the issue of whether or
not PDAF funds covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBMs interpretation in DBM
Circular 2013-8.
On this score, the Court agrees with petitioners posturing for the fundamental
reason that funds covered by an obligated SARO are yet to be "released"
under legal contemplation. A SARO, as defined by the DBM itself in its website,
is "aspecific authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the purpose indicated.
It shall cover expenditures the release of which is subject to compliance with
specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the
existence of an obligation and not the directive to pay. Practically speaking,
the SARO does not have the direct and immediate effect of placing public
funds beyond the control of the disbursing authority. In fact, a SARO may even
be withdrawn under certain circumstances which will prevent the actual
release of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA, 264 which is subsequent to the issuance of a
SARO. As may be determined from the statements of the DBM representative
during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the
SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the
agencies to obligate or to enter into commitments. The NCA, Your Honor, is
already the go signal to the treasury for us to be able to pay or to liquidate the
amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is
the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by
the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances
that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as
funds which have been "released." In this respect, therefore, the disbursement
of 2013 PDAF funds which are only covered by obligated SAROs, and without
any corresponding NCAs issued, must, at the time of this Decisions
promulgation, be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared unconstitutionality
of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be
disbursed even though already obligated, else the Court sanctions the dealing
of funds coming from an unconstitutional source.
To explain, the operative fact doctrine exhorts the recognition that until the
judiciary, in an appropriate case, declares the invalidity of a certain legislative
or executive act, such act is presumed constitutional and thus, entitled to
obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque
Power Corporation,266 the doctrine merely "reflects awareness that precisely
because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired
prior to such adjudication."267 "In the language of an American Supreme Court
decision: The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which
cannot justly be ignored."268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the
Pork Barrel System as unconstitutional in view of the inherent defects in the
rules within which it operates. To recount, insofar as it has allowed legislators
to wield, in varying gradations, non-oversight, post-enactment authority in
vital areas of budget execution, the system has violated the principle of
separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are
able to fund specific projects which they themselves determine, it has similarly
AN
ACT
RATIONALIZING
FURTHER
THE
STRUCTURE
AND
ADMINISTRATION OF THE DOCUMENTARY STAMP TAX, AMENDING FOR
THE PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR SPECIFIC
PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)
in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW
YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted
to the people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, 18 (2) of the 1935 Constitution, from which Art.
VI, 24 of the present Constitution was derived. It explains why the word
"exclusively" was added to the American text from which the framers of the
Philippine Constitution borrowed and why the phrase "as on other Bills" was
not copied. Considering the defeat of the proposal, the power of the Senate to
propose amendments must be understood to be full, plenary and complete "as
on other Bills." Thus, because revenue bills are required to originate
exclusively in the House of Representatives, the Senate cannot enact revenue
measures of its own without such bills. After a revenue bill is passed and sent
over to it by the House, however, the Senate certainly can pass its own version
on the same subject matter. This follows from the coequality of the two
chambers of Congress.
That this is also the understanding of book authors of the scope of the
Senate's power to concur is clear from the following commentaries:
The power of the Senate to propose or concur with amendments is
apparently without restriction. It would seem that by virtue of this
power, the Senate can practically re-write a bill required to come from
the House and leave only a trace of the original bill. For example, a
general revenue bill passed by the lower house of the United States
Congress contained provisions for the imposition of an inheritance
tax . This was changed by the Senate into a corporation tax. The
amending authority of the Senate was declared by the United States
Supreme Court to be sufficiently broad to enable it to make the
alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247
(1961))
The above-mentioned bills are supposed to be initiated by the House
of Representatives because it is more numerous in membership and
therefore also more representative of the people. Moreover, its
members are presumed to be more familiar with the needs of the
country in regard to the enactment of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of its
power to propose or concur with amendments to the bills initiated by
the House of Representatives. Thus, in one case, a bill introduced in
the U.S. House of Representatives was changed by the Senate to
make a proposed inheritance tax a corporation tax. It is also accepted
practice for the Senate to introduce what is known as an amendment
by substitution, which may entirely replace the bill initiated in the
House of Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, 24 provides that all appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and
private bills must "originate exclusively in the House of Representatives," it
also adds, "but the Senate may propose or concur with amendments." In the
exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a
committee to which a bill is referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill
omitting or adding sections or altering its language; (3) to make and
endorse an entirely new bill as a substitute, in which case it will be
known as a committee bill; or (4) to make no report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to
originate in the House by prescribing that the number of the House bill and its
other parts up to the enacting clause must be preserved although the text of
the Senate amendment may be incorporated in place of the original body of
the bill is to insist on a mere technicality. At any rate there is no rule
prescribing this form. S. No. 1630, as a substitute measure, is therefore as
much an amendment of H. No. 11197 as any which the Senate could have
made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is
that they assume that S. No. 1630 is an independent and distinct bill. Hence
their repeated references to its certification that it was passed by the Senate
"in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197," implying that there is something substantially different
between the reference to S. No. 1129 and the reference to H. No. 11197. From
this premise, they conclude that R.A. No. 7716 originated both in the House
and in the Senate and that it is the product of two "half-baked bills because
neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly
appear to be mere amendments of the corresponding provisions of H. No.
11197. The very tabular comparison of the provisions of H. No. 11197 and S.
No. 1630 attached as Supplement A to the basic petition of petitioner
Tolentino, while showing differences between the two bills, at the same time
indicates that the provisions of the Senate bill were precisely intended to be
amendments to the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630.
Because the Senate bill was a mere amendment of the House bill, H. No.
11197 in its original form did not have to pass the Senate on second and three
readings. It was enough that after it was passed on first reading it was referred
to the Senate Committee on Ways and Means. Neither was it required that S.
No. 1630 be passed by the House of Representatives before the two bills could
be referred to the Conference Committee.
There is legislative precedent for what was done in the case of H. No. 11197
and S. No. 1630. When the House bill and Senate bill, which became R.A. No.
1405 (Act prohibiting the disclosure of bank deposits), were referred to a
conference committee, the question was raised whether the two bills could be
the subject of such conference, considering that the bill from one house had
not been passed by the other and vice versa. As Congressman Duran put the
question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If
a House bill is passed by the House but not passed by the Senate, and
a Senate bill of a similar nature is passed in the Senate but never
passed in the House, can the two bills be the subject of a conference,
and can a law be enacted from these two bills? I understand that the
Senate bill in this particular instance does not refer to investments in
government securities, whereas the bill in the House, which was
introduced by the Speaker, covers two subject matters: not only
investigation of deposits in banks but also investigation of
investments in government securities. Now, since the two bills differ in
their subject matter, I believe that no law can be enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is
precisely in cases like this where a conference should be had. If the
House bill had been approved by the Senate, there would have been
no need of a conference; but precisely because the Senate passed
another bill on the same subject matter, the conference committee
had to be created, and we are now considering the report of that
committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S.
No. 1630 are distinct and unrelated measures also accounts for the petitioners'
(Kilosbayan's and PAL's) contention that because the President separately
certified to the need for the immediate enactment of these measures, his
certification was ineffectual and void. The certification had to be made of the
version of the same revenue bill which at the moment was being considered.
Otherwise, to follow petitioners' theory, it would be necessary for the President
to certify as many bills as are presented in a house of Congress even though
the bills are merely versions of the bill he has already certified. It is enough
that he certifies the bill which, at the time he makes the certification, is under
consideration. Since on March 22, 1994 the Senate was considering S. No.
1630, it was that bill which had to be certified. For that matter on June 1, 1993
the President had earlier certified H. No. 9210 for immediate enactment
because it was the one which at that time was being considered by the House.
This bill was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained
in the main decision that the phrase "except when the President certifies to
the necessity of its immediate enactment, etc." in Art. VI, 26 (2) qualifies not
only the requirement that "printed copies [of a bill] in its final form [must be]
distributed to the members three days before its passage" but also the
requirement that before a bill can become a law it must have passed "three
readings on separate days." There is not only textual support for such
construction but historical basis as well.
Art. VI, 21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been
printed and copies thereof in its final form furnished its Members at
least three calendar days prior to its passage, except when the
President shall have certified to the necessity of its immediate
enactment. Upon the last reading of a bill, no amendment thereof
shall be allowed and the question upon its passage shall be taken
immediately thereafter, and the yeas and nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, 19 (2):
(2) No bill shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been
distributed to the Members three days before its passage, except
when the Prime Minister certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote
thereon
shall
be
taken
immediately
thereafter,
and
the yeas and nays entered in the Journal.
This provision of the 1973 document, with slight modification, was adopted in
Art. VI, 26 (2) of the present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies thereof in
its final form have been distributed to its Members three days before
its passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon
the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The exception is based on the prudential consideration that if in all cases three
readings on separate days are required and a bill has to be printed in final form
before it can be passed, the need for a law may be rendered academic by the
occurrence of the very emergency or public calamity which it is meant to
address.
Petitioners further contend that a "growing budget deficit" is not an
emergency, especially in a country like the Philippines where budget deficit is
a chronic condition. Even if this were the case, an enormous budget deficit
does not make the need for R.A. No. 7716 any less urgent or the situation
calling for its enactment any less an emergency.
the changes in or other amendments." These changes are shown in the bill
attached to the Conference Committee Report. The members of both houses
could thus ascertain what changes had been made in the original bills without
the need of a statement detailing the changes.
At any rate, we are satisfied that S. No. 1630 received thorough consideration
in the Senate where it was discussed for six days. Only its distribution in
advance in its final printed form was actually dispensed with by holding the
voting on second and third readings on the same day (March 24, 1994).
Otherwise, sufficient time between the submission of the bill on February 8,
1994 on second reading and its approval on March 24, 1994 elapsed before it
was finally voted on by the Senate on third reading.
The purpose for which three readings on separate days is required is said to be
two-fold: (1) to inform the members of Congress of what they must vote on
and (2) to give them notice that a measure is progressing through the enacting
process, thus enabling them and others interested in the measure to prepare
their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION 10.04, p. 282 (1972)). These purposes were
substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan,
Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism,
Inc. (MABINI)) that in violation of the constitutional policy of full public
disclosure and the people's right to know (Art. II, 28 and Art. III, 7) the
Conference Committee met for two days in executive session with only the
conferees present.
As pointed out in our main decision, even in the United States it was
customary to hold such sessions with only the conferees and their staffs in
attendance and it was only in 1975 when a new rule was adopted requiring
open sessions. Unlike its American counterpart, the Philippine Congress has
not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the
rule in 1975, at least staff members were present. These were staff members
of the Senators and Congressmen, however, who may be presumed to be their
confidential men, not stenographers as in this case who on the last two days of
the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner
Kilosbayan basis for claiming that even in secret diplomatic negotiations
involving state interests, conferees keep notes of their meetings. Above all, the
public's right to know was fully served because the Conference Committee in
this case submitted a report showing the changes made on the differing
versions of the House and the Senate.
Petitioners cite the rules of both houses which provide that conference
committee reports must contain "a detailed, sufficiently explicit statement of
The same question now presented was raised when the bill which became R.A.
No. 1400 (Land Reform Act of 1955) was reported by the Conference
Committee. Congressman Bengzon raised a point of order. He said:
The PPI says that the discriminatory treatment of the press is highlighted by
the fact that transactions, which are profit oriented, continue to enjoy
exemption under R.A. No. 7716. An enumeration of some of these transactions
will suffice to show that by and large this is not so and that the exemptions are
granted for a purpose. As the Solicitor General says, such exemptions are
granted, in some cases, to encourage agricultural production and, in other
cases, for the personal benefit of the end-user rather than for profit. The
exempt transactions are:
(a) Goods for consumption or use which are in their original state
(agricultural, marine and forest products, cotton seeds in their original
state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock
and poultry feeds) and goods or services to enhance agriculture
(milling of palay, corn, sugar cane and raw sugar, livestock, poultry
feeds, fertilizer, ingredients used for the manufacture of feeds).
The Court was speaking in that case of a license tax, which, unlike an ordinary
tax, is mainly for regulation. Its imposition on the press is unconstitutional
because it lays a prior restraint on the exercise of its right. Hence, although its
application to others, such those selling goods, is valid, its application to the
press or to religious groups, such as the Jehovah's Witnesses, in connection
with the latter's sale of religious books and pamphlets, is unconstitutional. As
the U.S. Supreme Court put it, "it is one thing to impose a tax on income or
property of a preacher. It is quite another thing to exact a tax on him for
delivering a sermon."
Comment
on
the
Motions
for
The PPI asserts that it does not really matter that the law does not discriminate
against the press because "even nondiscriminatory taxation on constitutionally
guaranteed freedom is unconstitutional." PPI cites in support of this assertion
the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed.
1292 (1943):
A similar ruling was made by this Court in American Bible Society v. City of
Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a
business license fee on those engaged in the sale of general merchandise. It
was held that the tax could not be imposed on the sale of bibles by the
American Bible Society without restraining the free exercise of its right to
propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the
exercise of a privilege, much less a constitutional right. It is imposed on the
sale, barter, lease or exchange of goods or properties or the sale or exchange
of services and the lease of properties purely for revenue purposes. To subject
the press to its payment is not to burden the exercise of its right any more
than to make the press pay income tax or subject it to general regulation is not
to violate its freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells
bibles, the proceeds derived from the sales are used to subsidize the cost of
printing copies which are given free to those who cannot afford to pay so that
to tax the sales would be to increase the price, while reducing the volume of
sale. Granting that to be the case, the resulting burden on the exercise of
religious freedom is so incidental as to make it difficult to differentiate it from
any other economic imposition that might make the right to disseminate
religious doctrines costly. Otherwise, to follow the petitioner's argument, to
increase the tax on the sale of vestments would be to lay an impermissible
burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by 107 of the
NIRC, as amended by 7 of R.A. No. 7716, although fixed in amount, is really
just to pay for the expenses of registration and enforcement of provisions such
as those relating to accounting in 108 of the NIRC. That the PBS distributes
free bibles and therefore is not liable to pay the VAT does not excuse it from
the payment of this fee because it also sells some copies. At any rate whether
the PBS is liable for the VAT must be decided in concrete cases, in the event it
is assessed this tax by the Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract
clauses and the rule on taxation. CREBA asserts that R.A. No. 7716 (1) impairs
the obligations of contracts, (2) classifies transactions as covered or exempt
without reasonable basis and (3) violates the rule that taxes should be uniform
and equitable and that Congress shall "evolve a progressive system of
taxation."
With respect to the first contention, it is claimed that the application of the tax
to existing contracts of the sale of real property by installment or on deferred
payment basis would result in substantial increases in the monthly
amortizations to be paid because of the 10% VAT. The additional amount, it is
pointed out, is something that the buyer did not anticipate at the time he
entered into the contract.
The short answer to this is the one given by this Court in an early case:
"Authorities from numerous sources are cited by the plaintiffs, but none of
them show that a lawful tax on a new subject, or an increased tax on an old
one, interferes with a contract or impairs its obligation, within the meaning of
the Constitution. Even though such taxation may affect particular contracts, as
it may increase the debt of one person and lessen the security of another, or
may impose additional burdens upon one class and release the burdens of
another, still the tax must be paid unless prohibited by the Constitution, nor
can it be said that it impairs the obligation of any existing contract in its true
legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567,
574 (1919)). Indeed not only existing laws but also "the reservation of the
essential attributes of sovereignty, is . . . read into contracts as a postulate of
the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA
135, 147 (1968)) Contracts must be understood as having been made in
reference to the possible exercise of the rightful authority of the government
and no obligation of contract can extend to the defeat of that authority.
(Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while 4 of R.A. No. 7716 exempts such transactions
as the sale of agricultural products, food items, petroleum, and medical and
veterinary services, it grants no exemption on the sale of real property which is
equally essential. The sale of real property for socialized and low-cost housing
is exempted from the tax, but CREBA claims that real estate transactions of
"the less poor," i.e., the middle class, who are equally homeless, should
likewise be exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which
are essential goods and services was already exempt under 103, pars. (b) (d)
(1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in
claiming that R.A. No. 7716 granted exemption to these transactions, while
subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the
example given by petitioner, because the second group or middle class can
afford to rent houses in the meantime that they cannot yet buy their own
homes. The two social classes are thus differently situated in life. "It is inherent
in the power to tax that the State be free to select the subjects of taxation,
and it has been repeatedly held that 'inequalities which result from a singling
out of one particular class for taxation, or exemption infringe no constitutional
limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v.
De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163
SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also
violates Art. VI, 28(1) which provides that "The rule of taxation shall be
uniform and equitable. The Congress shall evolve a progressive system of
taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of
property of the same class be taxed at the same rate. The taxing power has
the authority to make reasonable and natural classifications for purposes of
taxation. To satisfy this requirement it is enough that the statute or ordinance
applies equally to all persons, forms and corporations placed in similar
situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716
was enacted. R.A. No. 7716 merely expands the base of the tax. The validity of
the original VAT Law was questioned in Kapatiran ng Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds similar
to those made in these cases, namely, that the law was "oppressive,
discriminatory, unjust and regressive in violation of Art. VI, 28(1) of the
Constitution." (At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid
tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all goods and
services sold to the public, which are not exempt, at the constant rate
of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of
goods or services by persons engaged in business with an aggregate
gross annual sales exceeding P200,000.00. Small corner sari-sari
stores are consequently exempt from its application. Likewise exempt
from the tax are sales of farm and marine products, so that the costs
of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within
the reach of the general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the
Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David
argues that the law contravenes the mandate of Congress to provide for a
progressive system of taxation because the law imposes a flat rate of 10% and
thus places the tax burden on all taxpayers without regard to their ability to
pay.
The Constitution does not really prohibit the imposition of indirect taxes which,
like the VAT, are regressive. What it simply provides is that Congress shall
"evolve a progressive system of taxation." The constitutional provision has
been interpreted to mean simply that "direct taxes are . . . to be preferred
[and] as much as possible, indirect taxes should be minimized." (E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)).
Indeed, the mandate to Congress is not to prescribe, but to evolve, a
progressive tax system. Otherwise, sales taxes, which perhaps are the oldest
form of indirect taxes, would have been prohibited with the proclamation of
Art. VIII, 17(1) of the 1973 Constitution from which the present Art. VI, 28(1)
was taken. Sales taxes are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because
it is difficult, if not impossible, to avoid them by imposing such taxes according
to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
regressive effects of this imposition by providing for zero rating of certain
transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, 4, amending 103
of the NIRC).
Thus, the following transactions involving basic and essential goods and
services are exempted from the VAT:
(a) Goods for consumption or use which are in their original state
(agricultural, marine and forest products, cotton seeds in their original
state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock
and poultry feeds) and goods or services to enhance agriculture
(milling of palay, corn sugar cane and raw sugar, livestock, poultry
feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and
personal effects of citizens returning to the Philippines) and or
professional use, like professional instruments and implements, by
persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be
used for manufacture of petroleum products subject to excise tax and
services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary
services,
and
services
rendered
under
employer-employee
relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international
agreements.
Comment
on
the
Motions
for
On the other hand, the transactions which are subject to the VAT are those
which involve goods and services which are used or availed of mainly by
higher income groups. These include real properties held primarily for sale to
customers or for lease in the ordinary course of trade or business, the right or
privilege to use patent, copyright, and other similar property or right, the right
or privilege to use industrial, commercial or scientific equipment, motion
picture films, tapes and discs, radio, television, satellite transmission and cable
television time, hotels, restaurants and similar places, securities, lending
investments, taxicabs, utility cars for rent, tourist buses, and other common
carriers, services of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of
constitutional violations by tendering issues not at retail but at wholesale and
in the abstract. There is no fully developed record which can impart to
adjudication the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its
effect on property rights. For the fact is that petitioner's members have not
even been assessed the VAT. Petitioner's case is not made concrete by a series
of hypothetical questions asked which are no different from those dealt with in
advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges
arbitrariness. A mere allegation, as here, does not suffice. There must
be a factual foundation of such unconstitutional taint. Considering that
petitioner here would condemn such a provision as void on its face, he
has not made out a case. This is merely to adhere to the authoritative
doctrine that where the due process and equal protection clauses are
invoked, considering that they are not fixed rules but rather broad
standards, there is a need for proof of such persuasive character as
would lead to such a conclusion. Absent such a showing, the
presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete
case. It may be that postponement of adjudication would result in a multiplicity
of suits. This need not be the case, however. Enforcement of the law may give
rise to such a case. A test case, provided it is an actual case and not an
abstract or hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating
abstract issues. Otherwise, adjudication would be no different from the giving
of advisory opinion that does not really settle legal issues.
We are told that it is our duty under Art. VIII, 1, 2 to decide whenever a claim
is made that "there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government." This duty can only arise if an actual case or controversy is before
us. Under Art . VIII, 5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, 1, 2 can plausibly mean is that in the exercise of that jurisdiction we
have the judicial power to determine questions of grave abuse of discretion by
any branch or instrumentality of the government.
Put in another way, what is granted in Art. VIII, 1, 2 is "judicial power," which
is "the power of a court to hear and decide cases pending between parties who
have the right to sue and be sued in the courts of law and equity" (Lamb v.
Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and
executive power. This power cannot be directly appropriated until it is
apportioned among several courts either by the Constitution, as in the case of
Art. VIII, 5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No.
296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power
thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the
exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an
actual case coming within its jurisdiction, this Court cannot inquire into any
allegation of grave abuse of discretion by the other departments of the
government.
15. The Congress shall create an agency to promote the viability and
growth of cooperatives as instruments for social justice and economic
development.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the
Cooperative Union of the Philippines (CUP), after briefly surveying the course
of legislation, argues that it was to adopt a definite policy of granting tax
exemption to cooperatives that the present Constitution embodies provisions
on cooperatives. To subject cooperatives to the VAT would therefore be to
infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was
promulgated exempting cooperatives from the payment of income taxes and
sales taxes but in 1984, because of the crisis which menaced the national
economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D.
No. 2008 again granted cooperatives exemption from income and sales taxes
until December 31, 1991, but, in the same year, E.O. No. 93 revoked the
exemption; and that finally in 1987 the framers of the Constitution "repudiated
the previous actions of the government adverse to the interests of the
cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the
cooperatives by way of the grant of tax exemptions," by providing the
following in Art. XII:
1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based
on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign
In the pursuit of these goals, all sectors of the economy and all regions
of the country shall be given optimum opportunity to develop. Private
enterprises, including corporations, cooperatives, and similar
collective organizations, shall be encouraged to broaden the base of
their ownership.
Petitioner's contention has no merit. In the first place, it is not true that P.D.
No. 1955 singled out cooperatives by withdrawing their exemption from
income and sales taxes under P.D. No. 175, 5. What P.D. No. 1955, 1 did was
to withdraw the exemptions and preferential treatments theretofore granted
to private business enterprises in general, in view of the economic crisis which
then beset the nation. It is true that after P.D. No. 2008, 2 had restored the
tax exemptions of cooperatives in 1986, the exemption was again repealed by
E.O. No. 93, 1, but then again cooperatives were not the only ones whose
exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the
Constitution does not really require that cooperatives be granted tax
exemptions in order to promote their growth and viability. Hence, there is no
basis for petitioner's assertion that the government's policy toward
cooperatives had been one of vacillation, as far as the grant of tax privileges
was concerned, and that it was to put an end to this indecision that the
constitutional provisions cited were adopted. Perhaps as a matter of policy
cooperatives should be granted tax exemptions, but that is left to the
discretion of Congress. If Congress does not grant exemption and there is no
discrimination to cooperatives, no violation of any constitutional policy can be
charged.
Indeed, petitioner's theory amounts to saying that under the Constitution
cooperatives are exempt from taxation. Such theory is contrary to the
Constitution under which only the following are exempt from taxation:
charitable institutions, churches and parsonages, by reason of Art. VI, 28 (3),
and non-stock, non-profit educational institutions by reason of Art. XIV, 4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it
denies cooperatives the equal protection of the law because electric
cooperatives are exempted from the VAT. The classification between electric
and other cooperatives (farmers cooperatives, producers cooperatives,
marketing cooperatives, etc.) apparently rests on a congressional
determination that there is greater need to provide cheaper electric power to
as many people as possible, especially those living in the rural areas, than
there is to provide them with other necessities in life. We cannot say that such
classification is unreasonable.
We have carefully read the various arguments raised against the constitutional
validity of R.A. No. 7716. We have in fact taken the extraordinary step of
Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty
of their followers in the country. The ratification of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however,
stop bloody challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led a failed coup
that left scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they
conveyed was the same a split in the ranks of the military establishment
that thraetened civilian supremacy over military and brought to the fore the
realization that civilian government could be at the mercy of a fractious
military.
But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists
have set up a parallel government of their own on the areas they effectively
control while the separatist are virtually free to move about in armed bands.
There has been no let up on this groups' determination to wrest power from
the govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the
country.
2)
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1)
Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a)
Assuming that the President has the power to bar former President Marcos
and his family from returning to the Philippines, in the interest of "national
security, public safety or public health
a)
Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety or public health?
b)
Nor are the woes of the Republic purely political. The accumulated foreign debt
and the plunder of the nation attributed to Mr. Marcos and his cronies left the
economy devastated. The efforts at economic recovery, three years after Mrs.
Aquino assumed office, have yet to show concrete results in alleviating the
poverty of the masses, while the recovery of the ill-gotten wealth of the
Marcoses has remained elusive.
ii)
iv) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was
based, been made known to petitioners so that they may
controvert the same?
c)
d)
The Petition
This case is unique. It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political,
economic and social havoc in the country and who within the short space of
three years seeks to return, is in a class by itself.
The Issue
i)
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to the
nation of his return at a time when the stability of government is threatened
from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and
his family.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
3)
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the issue in this
case involves a political question which is non-justiciable. According to the
Solicitor General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rightsin
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the
face of the determination by the President that such return and
residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is
not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental
right of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return
to the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security
over individual rights. In support thereof, they cite Article II of the Constitution,
to wit:
Section 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety
has international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista
of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador,
and Marcos Perez Jimenez of Venezuela were among the deposed dictators
whose return to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues, we
are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed.
2d 640) which affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the borders
of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand,
the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which rights may be restricted by such
laws as "are necessary to protect national security, public order, public health
or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the
limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law and,
under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or
not there can be limitations on the right to travel in the absence of legislation
to that effect is rendered unnecessary. An appropriate case for its resolution
will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain
the methodology for its resolution. Our resolution of the issue will involve a
two-tiered approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack
or excess of jurisdiction when she determined that the return of the Marcose's
to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel in Angara
v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked
but with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.1 Thus,
the 1987 Constitution explicitly provides that "[the legislative power shall be
vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive
power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and
"[te judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not
only establish a separation of powers by actual division [Angara v. Electoral
Commission, supra] but also confer plenary legislative, executive and judicial
powers subject only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a
grant of the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power which may
be exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined
membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive
power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does
not define what is meant by executive power" although in the same article it
touches on the exercise of certain powers by the President, i.e., the power of
control over all executive departments, bureaus and offices, the power to
execute the laws, the appointing power, the powers under the commander-inchief clause, the power to grant reprieves, commutations and pardons, the
power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress, and
the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated powers
the breadth and scope of "executive power"? Petitioners advance the view that
the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and
what is not enumerated is impliedly denied to her. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings
to mind the institution of the U.S. Presidency after which ours is legally
patterned.**
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who
think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers, 17871957,
pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the
swing from the presidency by commission to Lincoln's dictatorship, he
totally undeserving of the grant. Nor can we amend the Constitution under the
guise of resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us that precludes our determination thereof
on the political question doctrine. The deliberations of the Constitutional
Commission cited by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of justice to settle all
actual controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide.
In this light, it would appear clear that the second paragraph of Article VIII,
Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave
abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within
his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere alloted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the
function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such postulates
do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments,
and the facts revealed during the briefing in chambers by the Chief of Staff of
the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual bases for the
President's decision..
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist insurgency,
and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.
On the other hand, the 1973 Constitution, consistent with the authoritarian
pattern in which it was molded and remolded by successive amendments,
placed the absolute power of appointment in the President with hardly any
check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other,
in the 1973 Constitution, it is not difficult for the Court to state that the
framers of the 1987 Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the Commission on
Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group, i.e., officers of
lower rank.
The proceedings in the 1986 Constitutional Commission support this
conclusion. The original text of Section 16, Article VII, as proposed by the
Committee on the Executive of the 1986 Constitutional Commission, read as
follows:
Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain and all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may by law
vest the appointment of inferior officers in the President alone, in the
courts, or in the heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the
1935 Constitution. When the frames discussed on the floor of the Commission
the proposed text of Section 16, Article VII, a feeling was manifestly expressed
to make the power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission in the 1935
Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a
few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee
this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the
Commission on Appointments be limited to the department heads,
(Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were (1) the
exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence 9 of the section from the same
requirement. The records of the deliberations of the Constitutional Commission
show the following:
and argues that, since a law is needed to vest the appointment of lower-ranked
officers in the President alone, this implies that, in the absence of such a law,
lower-ranked officers have to be appointed by the President subject to
confirmation by the Commission on Appointments; and, if this is so, as to
lower-ranked officers, it follows that higher-ranked officers should be appointed
by the President, subject also to confirmation by the Commission on
Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16,
Article VII, abovequoted, merely declares that, as to lower-ranked officers, the
Congress may by law vest their appointment in the President, in the courts, or
in the heads of the various departments, agencies, commissions, or boards in
the government. No reason however is submitted for the use of the word
"alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion,
after a careful study of the deliberations of the 1986 Constitutional
Commission, that the use of the word alone" after the word "President" in said
third sentence of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the
following provision appears at the end of par. 3, section 1 0, Article VII thereof
...; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the
provision which makes practically all presidential appointments subject to
confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein provided for,
and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule,
presidential appointments to confirmation by the Commission on
Appointments, the same 1935 Constitution saw fit, by way of an exception to
such rule, to provide that Congress may, however, by law vest the
appointment of inferior officers (equivalent to 11 officers lower in rank"
referred to in the 1987 Constitution) in the President alone, in the courts, or in
the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments from
confirmation by the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16, Article VII.
Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that
Congress may by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments, because the
power to appoint officers whom he (the President) may be authorized by law to
appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16,
Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely
that, in the case of lower-ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the heads of various
departments of the government. In short, the word "alone" in the third
sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import
from the last part of par. 3, section 10, Article VII of the 1935 Constitution,
appears to be redundant in the light of the second sentence of Sec. 16, Article
VII. And, this redundancy cannot prevail over the clear and positive intent of
the framers of the 1987 Constitution that presidential appointments, except
those mentioned in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the
position of Commissioner of the Bureau of Customs (a bureau head) is not one
of those within the first group of appointments where the consent of the
Commission on Appointments is required. As a matter of fact, as already
pointed out, while the 1935 Constitution includes "heads of bureaus" among
those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded
the position of "heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1.
Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057
for being premature;
2.
Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and
3.
Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:
a.
b.
c.
d.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland
B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420),
as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBPDavao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong
Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial
Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.),
filed their respective motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated
intervention was allowed.
We summarize the arguments and submissions of the various motions for
reconsideration, in the aforegiven order:
Soriano
2.
Considering that Section 15, Article VII is clear and straightforward, the
only duty of the Court is to apply it. The provision expressly and clearly
provides a general limitation on the appointing power of the President in
prohibiting the appointment of any person to any position in the
Government without any qualification and distinction.
1.
The Court has not squarely ruled upon or addressed the issue of whether
or not the power to designate the Chief Justice belonged to the Supreme
Court en banc.
2.
3.
3.
All Justices of the Court should participate in the next deliberations. The
mere fact that the Chief Justice sits as ex officio head of the JBC should not
prevail over the more compelling state interest for him to participate as a
Member of the Court.
4.
5.
The Court has erred in failing to apply the basic principles of statutory
construction in interpreting the Constitution.
6.
The Court has erred in relying heavily on the title, chapter or section
headings, despite precedents on statutory construction holding that such
headings carried very little weight.
7.
8.
The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Puno with a view to submitting the
list of nominees for Chief Justice to President Arroyo on or before May 17,
2010. The Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or
when to do it, especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.
9.
The Court has engaged in rendering an advisory opinion and has indulged
in speculations.
2.
A plain reading of Section 15, Article VII does not lead to an interpretation
that exempts judicial appointments from the express ban on midnight
appointments.
In excluding the Judiciary from the ban, the Court has made distinctions
and has created exemptions when none exists.
3.
4.
5.
The Court has given too much credit to the position taken by Justice
Regalado. Thereby, the Court has raised the Constitution to the level of a
venerated text whose intent can only be divined by its framers as to be
outside the realm of understanding by the sovereign people that ratified it.
6.
7.
The petitioners, as taxpayers and lawyers, have the clear legal standing to
question the illegal composition of the JBC.
is
10. The constitutional ban on appointments being already in effect, the Courts
directing the JBC to comply with the decision constitutes a culpable
violation of the Constitution and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice
whenever the incumbent is indisposed. Thus, the appointment of the
successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest
any attempt to prolong the outgoing Presidents powers by means of
proxies. The attempt of the incumbent President to appoint the next Chief
Justice is undeniably intended to perpetuate her power beyond her term of
office.
3.
4.
5.
Its language being unambiguous, Section 15, Article VII of the Constitution
applies to appointments to the Judiciary. Hence, no cogent reason exists to
warrant the reversal of the Valenzuela pronouncement.
2.
BAYAN, et al.
3.
1.
The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy. The issues it raised were
not yet ripe for adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide whether or not
to submit a list of nominees to the President.
2.
3.
In ruling that Section 15, Article VII is in conflict with Section 4(1), Article
VIII, the Court has violated the principle of ut magis valeat quam pereat
(which mandates that the Constitution should be interpreted as a whole,
such that any conflicting provisions are to be harmonized as to fully give
effect to all). There is no conflict between the provisions; they complement
each other.
4.
The form and structure of the Constitutions titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and
plain language of Section 15, Article VII precludes interpretation.
Lim
1.
2.
The election ban under Section 15, Article VII applies to appointments to
fill a vacancy in the Court and to other appointments to the Judiciary.
3.
The creation of the JBC does not justify the removal of the safeguard under
Section 15 of Article VII against midnight appointments in the Judiciary.
Corvera
1.
2.
Tan, Jr.
1.
2.
The ruling that Section 15, Article VII does not apply to a vacancy in the
Court and the Judiciary runs in conflict with long standing principles and
doctrines of statutory construction. The provision admits only one
exception, temporary appointments in the Executive Department. Thus,
the Court should not distinguish, because the law itself makes no
distinction.
3.
4.
5.
6.
7.
WTLOP
1.
The Court exceeded its jurisdiction in ordering the JBC to submit the list of
nominees for Chief Justice to the President on or before May 17, 2010,
and to continue its proceedings for the nomination of the candidates,
because it granted a relief not prayed for; imposed on the JBC a deadline
not provided by law or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.
2.
In interpreting Section 15, Article VII, the Court has ignored the basic
principle of statutory construction to the effect that the literal meaning of
the law must be applied when it is clear and unambiguous; and that we
should not distinguish where the law does not distinguish.
3.
There is no urgency to appoint the next Chief Justice, considering that the
Judiciary Act of 1948 already provides that the power and duties of the
office devolve on the most senior Associate Justice in case of a vacancy in
the office of the Chief Justice.
Ubano
1.
The language of Section 15, Article VII, being clear and unequivocal, needs
no interpretation
2.
3.
4.
The Court has erred in ordering the JBC to submit the list of nominees to
the President by May 17, 2010 at the latest, because no specific law
requires the JBC to submit the list of nominees even before the vacancy
has occurred.
Boiser
1.
Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The
limitation is in keeping with the clear intent of the framers of the
Constitution to place a restriction on the power of the outgoing Chief
Executive to make appointments.
2.
To exempt the appointment of the next Chief Justice from the ban on
midnight appointments makes the appointee beholden to the outgoing
Chief Executive, and compromises the independence of the Chief Justice by
having the outgoing President be continually influential.
3.
Bello, et al.
1.
Section 15, Article VII does not distinguish as to the type of appointments
an outgoing President is prohibited from making within the prescribed
period. Plain textual reading and the records of the Constitutional
Commission support the view that the ban on midnight appointments
extends to judicial appointments.
2.
3.
The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy.
Pimentel
1.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his
comment even if the OSG and the JBC were the only ones the Court has
required to do so. He states that the motions for reconsideration were directed
at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in
their respective comments, thus:
OSG
1.
The JBC may be compelled to submit to the President a short list of its
nominees for the position of Chief Justice.
2.
The incumbent President has the power to appoint the next Chief Justice.
3.
4.
5.
The Court has the duty to consider and resolve all issues raised by the
parties as well as other related matters.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article
VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission
quoted in the dissent of Justice Carpio Morales, as well as in some of
the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on
nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters
being thereby raised and argued, not being new, have all been resolved by the
decision of March 17, 2010.
JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time the
petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to
interview the candidates, has not submitted a short list to the
President.
2. The statement in the decision that there is a doubt on whether a
JBC short list is necessary for the President to appoint a Chief Justice
should be struck down as bereft of constitutional and legal basis. The
statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord
with its constitutional mandate and its implementing rules and
regulations.
Nonetheless, the Court opts to dwell on some matters only for the purpose of
clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that are settled.
It simply means that a principle underlying the decision in one case is deemed
of imperative authority, controlling the decisions of like cases in the same
court and in lower courts within the same jurisdiction, unless and until the
decision in question is reversed or overruled by a court of competent authority.
The decisions relied upon as precedents are commonly those of appellate
courts, because the decisions of the trial courts may be appealed to higher
courts and for that reason are probably not the best evidence of the rules of
law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce
obedience to them.3 In a hierarchical judicial system like ours, the decisions of
the higher courts bind the lower courts, but the courts of co-ordinate authority
do not bind each other. The one highest court does not bind itself, being
invested with the innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not controlled
by precedent. Thus, the Court, especially with a new membership, is not
obliged to follow blindly a particular decision that it determines, after reexamination, to call for a rectification. 5 The adherence to precedents is strict
and rigid in a common-law setting like the United Kingdom, where judges make
law as binding as an Act of Parliament. 6 But ours is not a common-law system;
hence, judicial precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the
court in the latter case accepts such reasoning and justification to be
applicable to the case. The application of the precedent is for the sake of
convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control, the
Court in this case is, therefore, devoid of rationality and foundation. They seem
to conveniently forget that the Constitution itself recognizes the innate
authority of the Court en banc to modify or reverse a doctrine or principle of
law laid down in any decision rendered en banc or in division. 7
Second: Some intervenors are grossly misleading the public by their insistence
that the Constitutional Commission extended to the Judiciary the ban on
presidential appointments during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the
records of the Constitutional Commission did not concern either Section 15,
Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a
provision on nepotism. The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices
related to the President within the fourth civil degree of consanguinity or
affinity among the persons whom the President might not appoint during his or
her tenure. In the end, however, Commissioner Davide, Jr. withdrew the
proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any
further complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to
wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as Members of
the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article
VII does not apply to appointments in the Judiciary. They aver that the Court
either ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of
the express extension of the ban on appointments to the Judiciary, insist that
the ban applied to the Judiciary under the principle of verba legis. That is selfcontradiction at its worst.
Another instance is the movants unhesitating willingness to read into Section
4(1) and Section 9, both of Article VIII, the express applicability of the ban
under Section 15, Article VII during the period provided therein, despite the
silence of said provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an encroachment upon the
field of the Constitutional Commission. Rather, Section 4(1) and Section 9
should be left as they are, given that their meaning is clear and explicit, and
no words can be interpolated in them. 9Interpolation of words is unnecessary,
because the law is more than likely to fail to express the legislative intent with
the interpolation. In other words, the addition of new words may alter the
thought intended to be conveyed. And, even where the meaning of the law is
clear and sensible, either with or without the omitted word or words,
interpolation is improper, because the primary source of the legislative intent
is in the language of the law itself. 10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could
have explicitly done so. They could not have ignored the meticulous ordering
of the provisions. They would have easily and surely written the prohibition
made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely
in Section 4 (1), Article VIII. That such specification was not done only reveals
that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up
to the end of the Presidents or Acting Presidents term does not refer to the
Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any
unintended point in order to suit the purposes of any quarter.
Final Word
May 3, 2006
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
recklessly
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of the
Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call
upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as
the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006,
which were issued on the basis of Proclamation No. 1017, the Armed Forces of
the Philippines (AFP) and the Philippine National Police (PNP), were directed to
maintain law and order throughout the Philippines, prevent and suppress all
form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the New
Peoples Army (NPA), and some members of the political opposition in a plot to
unseat or assassinate President Arroyo.4 They considered the aim to oust or
assassinate the President and take-over the reigns of government as a clear
and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is not
respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the
Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in
Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to " show and
proclaim our displeasure at the sham regime. Let us demonstrate our disgust,
not only by going to the streets in protest, but also by wearing red bands on
our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan
Hackle I " which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.6 Upon the advice of her security, President Arroyo decided not
to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse
in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group
and the National Peoples Army (NPA), a tape recorder, audio cassette
cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest,
Lt. San Juan announced through DZRH that the "Magdalos D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to"disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly Sindayen
of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a
U.S. government official about his groups plans if President Arroyo is ousted.
Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could
possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of command.
He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances
with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken
and unable to rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the antiArroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing
its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual
basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army
outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting
peace and order situation. She directed both the AFP and the PNP to account
for all their men and ensure that the chain of command remains solid and
undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the
entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political rallies,
which to the Presidents mind were organized for purposes of destabilization,
are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already
be implemented."11
Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and
break up the marching groups, and scatter the massed participants. The same
police action was used against the protesters marching forward to Cubao,
Quezon City and to the corner of Santolan Street and EDSA. That same
evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of
PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mockups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building. 13
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a strong presence, to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government." The PNP warned
that it would take over any media organization that would not
follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the
standards and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of
national emergency. He asked for "balanced reporting" from broadcasters
when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the warrant, which
stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the
police.
of expression" and "a declaration of martial law." They alleged that President
Arroyo "gravely abused her discretion in calling out the armed forces without
clear and verifiable factual basis of the possibility of lawless violence and a
showing that there is necessity to do so."
Bayan Muna Representative Satur Ocampo eluded arrest when the police went
after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an "arbitrary and unlawful exercise by the President of her Martial Law
powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition, petitioners
asserted that PP 1017 "goes beyond the nature and function of a proclamation
as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP
1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the
right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution." In this regard, she stated
that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,petitioners
in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is
not
necessary
for
petitioners
to
implead
President
Arroyo
as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP
1017 does not violate the peoples right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
Nos.
al.),
B. SUBSTANTIVE:
1.
2.
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept
rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "selfstarting capacity."23 Courts may exercise such power only when the following
requisites
are
present: first, there
must
be
an
actual
case
or
controversy;second, petitioners
have
to
raise
a
question
of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is "definite and concrete,
touching the legal relations of parties having adverse legal interest;" a real and
substantial controversy admitting of specific relief. 25 The Solicitor General
refutes the existence of such actual case or controversy, contending that the
present petitions were rendered "moot and academic" by President Arroyos
issuance of PP 1021.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,39 where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public
right, howeverthe people are the real partiesIt is at least the
right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayers suits,Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed inTileston v. Ullman.43 The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a
direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera,44 it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as,Custodio v. President of the
Senate,45 Manila Race Horse Trainers Association v. De la Fuente,46 Pascual v.
Secretary of Public Works47 and Anti-Chinese League of the Philippines v.
Felix.48
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian
Reform,62 Basco
v.
Philippine
Amusement
and
Gaming
Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its
right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights
of their members.65 We take judicial notice of the announcement by the
Office of the President banning all rallies and canceling all permits for public
assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation.
Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown
that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the "liberality doctrine" on legal standing. It cannot
be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus call for the
application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it."84 But Locke
recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that "the people have no other remedy in
this, as in all other cases where they have no judge on earth, but to
appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render
it impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle
to their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In such
a case, there is no doubt about the general will, and it clear that the peoples
first intention is that the State shall not perish. 86
John Stuart Mill concluded his ardent defense of representative government: " I
am far from condemning, in cases of extreme necessity, the
assumption of absolute power in the form of a temporary
dictatorship."88
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a
problem of concentrating power in a government where power has
consciously been divided to cope with situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must
be legitimate; he should not enjoy power to determine the existence
of an emergency; emergency powers should be exercised under a
strict time limitation; and last, the objective of emergency action
must be the defense of the constitutional order."97
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven."
Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.87
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need
of a call.
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the power
to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the
Court ruled that the only criterion for the exercise of the calling-out power is
that "whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo found
it necessary to issue PP 1017. Owing to her Offices vast intelligence network,
she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the Presidents
calling-out power is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of
our Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
Presidents authority to declare a "state of rebellion" (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as Commanderin-Chief only where there is a valid declaration of Martial Law or suspension of
the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of
Martial Law. It is merely an exercise of President Arroyos calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.
As the Executive in whom the executive power is vested, 115 the primary
function of the President is to enforce the laws as well as to formulate policies
to be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws." 116 In the exercise of such
function, the President, if needed, may employ the powers attached to his
office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of
Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction."
\
Petitioners contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted 120 from Former President Marcos Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines
by virtue of the powers vested upon me by Article VII, Section 10, Paragraph
(2) of the Constitution, do hereby place the entire Philippines as defined in
Article 1, Section 1 of the Constitution under martial law and, in my capacity as
What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency,
PP 1017 purports to grant the President, without any authority or delegation
from Congress, to take over or direct the operation of any privately-owned
public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention. 122 In effect at the
time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
"the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by
the Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives, claim
that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.
Yes,
it
could
refer
to both
military
or
economic
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis
of these illegal acts? In general,does the illegal implementation of a law render
it unconstitutional?
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected
with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence
of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
ransacked without warrant" their office. Three policemen were assigned to
guard their office as a possible "source of destabilization." Again, the basis was
PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power
I.
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may afford
an opportunity for abuse in the manner of application.136 The validity of
a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired,not from its effects in a particular
case.137 PP 1017 is merely an invocation of the Presidents calling-out power.
Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017
allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is
the essential basis for the exercise of power, and not a mere incidental
result arising from its exertion.138 This is logical. Just imagine the absurdity
of situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging from
the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are "acts and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines." They are
internal rules issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations
create no relation except between the official who issues them and the official
who receives them.139 They are based on and are the product of, a relationship
in which power is their source, and obedience, their object. 140 For these
reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes
and the Constitution, and which is invariably associated with "invasion,
insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing
acts of terrorism.
United States, and a terrorist gang for the Soviet Union. One could go on and
on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at the
roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power
in a given territory, the definition of terrorism will "fluctuate" accordingly. A
state may eventually see itself as protector of the rights of a certain ethnic
group outside its territory and will therefore speak of a "liberation struggle,"
not of "terrorism" when acts of violence by this group are concerned, and viceversa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terroristsfreedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign
states and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! has become even more serious in the present global
power constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers
are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States. 141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It
must be remembered that an act can only be considered a crime if there is a
law defining the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D.
No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled "Codifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision:
"That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporalx x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985.
These two (2) laws, however, do not define "acts of terrorism." Since there is
no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No.
5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there
can be indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be
effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion of
G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what arenecessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally. 146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced in
the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances,
the charges of inciting to sedition andviolation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers conduct. In De Jonge v. Oregon,148 it was held that
peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding
of meetings for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceful assembly are not
to be preserved, is not as to the auspices under which the meeting was held
but as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the
public peace and order, they may be prosecuted for their conspiracy or other
violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion
as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMUet al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local government units.
This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State
may deny the citizens right to exercise it. Indeed, respondents failed to show
or convince the Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits. 150 The first
time they learned of it was at the time of the dispersal. Such absence of notice
is a fatal defect. When a persons right is restricted by government action, it
behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners narration of facts, which
the Solicitor General failed to refute, established the following: first, theDaily
Tribunes offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the
security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid
was "meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." Director General Lomibao further stated that "if they do
not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 we
will recommend a takeover." National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality.
AndSection 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to
be searched, in which case a direction may be inserted that it be served at any
time of the day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked
and sealed, with the further result that the printing and publication
of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement duties.
The search and seizure of materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribunes offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible "for any
purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose. 155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 oclock in
the morning and without any search warrant? Did they become suddenly part
of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any
law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening
event would have normally rendered this case moot and academic. However,
while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April
30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised
by the parties should not be "evaded;" they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017s extraneous provisions giving the President express or implied power (1)
to issue decrees; (2) to direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint
on the press, are ultra vires and unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution, the President, in the absence
of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP
to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the "necessary
and appropriate actions and measures to suppress and prevent acts
of lawless violence."But the words "acts of terrorism" found in G.O. No. 5
have not been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPs authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the
KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication
and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The
civil complaints or causes of action and/or relevant criminal Informations have
not been presented before this Court. Elementary due process bars this Court
objectionable. Moreover, what the PCSO said in its manifestation in the first
case was the following:
1.
2.
There was thus no "formal commitment" but only a manifestation that the
parties were not filing a motion for reconsideration. Even if the parties made a
"formal commitment," the six (6) dissenting Justices certainly could not be
bound thereby not to insist on their contrary view on the question of standing.
Much less were the two new members bound by any "formal commitment"
made by the parties. They believed that the ruling in the first case was
erroneous. Since in their view reexamination was not barred by the doctrine
of stare decisis, res judicata or conclusiveness of judgment or law of the case,
they voted the way they did with the remaining five (5) dissenters in the first
case to form a new majority of eight.
Petitioners ask, "Why should this be so?" Because, as explained in the
decision, the first decision was erroneousand no legal doctrine stood in the
way of its reexamination. It can, therefore, be asked "with equal candor": "Why
should this not be so?"
Nor is this the first time a split decision was tested, if not reversed, in a
subsequent case because of change in the membership of a court. In 1957,
this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23,
1957 that the phrase "at the time of the election" in 2174 of the Revised
Administrative Code of 1917 meant that a candidate for municipal elective
position must be at least 23 years of age on the date of the election. On the
other hand, the dissenters argued that it was enough if he attained that age on
the day he assumed office.
Less than three years later, the same question was before the Court again, as
a candidate for municipal councilor stated under oath in her certificate of
candidacy that she was eligible for that position although she attained the
requisite age (23 years) only when she assumed office. The question was
whether she could be prosecuted for falsification. In People v. Yang, 107 Phi.
888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison,
who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion
of the Court, holding that while the statement that the accused was eligible
was "inexact or erroneous, according to the majority in the Feliciano case," the
accused could not be held liable for falsification, because
the question [whether the law really required candidates to have the
required age on the day of the election or whether it was sufficient
that they attained it at the beginning of the term of office] has not
been discussed anew, despite the presence of new members; we
simply assume for the purpose of this decision that the doctrine
stands.
Thus because in the meantime there had been a change in the membership of
the Court with the retirement of two members (Recess and Flex, JJ.) who had
taken part in the decision in the first case and their replacement by new
members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the
first case was a narrow one (6 to 5), the Court allowed that the continuing
validity of its ruling in the first case might well be doubted. For this reason it
gave the accused the benefit of the doubt that she had acted in the good faith
belief that it was sufficient that she was 23 years of age when she assumed
office.
In that case, the change in the membership of the Court and the possibility of
change in the ruling were noted without anyone much less would-be
psychoanalysts finding in the statement of the Court any Freudian slip. The
possibility of change in the rule as a result of change in membership was
accepted as a sufficient reason for finding good faith and lack of criminal intent
on the part of the accused.
Indeed, a change in the composition of the Court could prove the means of
undoing an erroneous decision. This was the lesson of Knox v. Lee, 12 Wall.
457 (1871). The Legal Tender Acts, which were passed during the Civil War,
made U.S. notes (greenbacks) legal tender for the payment of debts, public or
private, with certain exceptions. The validity of the acts, as applied to
preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869).
The Court was then composed of only eight (8) Justices because of
Congressional effort to limit the appointing power of President Johnson. Voting
5-3, the Court declared the acts void. Chief Justice Chase wrote the opinion of
the Court in which four others, including Justice Grier, concurred. Justices
Miller, Swayne and Davis dissented. A private memorandum left by the
dissenting Justices described how an effort was made "to convince an aged
and infirm member of the court [Justice Grier] that he had not understood the
question on which he voted," with the result that what was originally a 4-4 vote
was converted into a majority (5-3) for holding the acts invalid.
On the day the decision was announced, President Grant nominated to the
Court William Strong and Joseph P. Bradley to fill the vacancy caused by the
resignation of Justice Grier and to restore the membership of the Court to nine.
In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox
v. Lee came to be known, in an opinion by Justice Strong, with a dissenting
opinion by Chief Justice Chase and the three other surviving members of the
former majority. There were allegations that the new Justices were appointed
for their known views on the validity of the Legal Tender Acts, just as there
were others who defended the character and independence of the new
Justices. History has vindicated the overruling of the Hepburn case by the new
majority. The Legal Tender Cases proved to be the Court's means of salvation
from what Chief Justice Hughes later described as one of the Court's "selfinflicted wounds." 1
We now consider
reconsideration.
the
specific
grounds
for
petitioners'
motion
for
It is noteworthy that petitioners do not question the validity of the law allowing
lotteries. It is the contract entered into by the PCSO and the PGMC which they
are assailing. This case, therefore, does not raise issues of constitutionality but
only of contract law, which petitioners, not being privies to the agreement,
cannot raise.
Nor does Kilosbayan's status as a people's organization give it the requisite
personality to question the validity of the contract in this case. The
Constitution provides that "the State shall respect the role of independent
people's organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and aspirations
through peaceful and lawful means," that their right to "effective and
reasonable participation at all levels of social, political, and economic decisionmaking shall not be abridged." (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in
interest or those with standing, as the case may be, may invoke the judicial
power. The jurisdiction of this Court, even in cases involving constitutional
questions, is limited by the "case and controversy" requirement of Art. VIII, 5.
This requirement lies at the very heart of the judicial function. It is what
differentiates decision-making in the courts from decision-making in the
political departments of the government and bars the bringing of suits by just
any party.
Petitioners quote extensively from the speech of Commissioner Garcia before
the Constitutional Commission, explaining the provisions on independent
people's organizations. There is nothing in the speech, however, which
supports their claim of standing. On the contrary, the speech points the way to
the legislative and executive branches of the government, rather than to the
courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed,
the provisions on independent people's organizations may most usefully be
read in connection with the provision on initiative and referendum as a means
whereby the people may propose or enact laws or reject any of those passed
by Congress. For the fact is that petitioners' opposition to the contract in
question is nothing more than an opposition to the government policy on
lotteries.
It is nevertheless insisted that this Court has in the past accorded standing to
taxpayers and concerned citizens in cases involving "paramount public
interest." Taxpayers, voters, concerned citizens and legislators have indeed
been allowed to sue but then only (1) in cases involving constitutional
issues and
(2) under certain conditions. Petitioners do not meet these requirements on
standing.
Taxpayers are allowed to sue, for example, where there is a claim of illegal
disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phi.
331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v.
Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325
[1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases
[Tolentino v. Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to
question the validity of election laws because of their obvious interest in the
2.
3.
4.
5.
6.
Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize
the system of reviewing negotiated contracts of purchase for the furnishing of
supplies, materials and equipment as well as lease contracts of buildings.
Theretofore, E.O. No. 298, promulgated on August 12, 1940, required
consultation with the Secretary of Justice and the Department Head concerned
and the approval of the President of the Philippines before contracts for the
furnishing of supplies, materials and equipment could be made on a
negotiated basis, without public bidding. E.O. No. 301 changed this by
providing as follows:
2. Jurisdiction over Negotiated Contracts. In line with the principles of
decentralization and accountability, negotiated contracts for public services or
for furnishing supplies, materials or equipment may be entered into by the
department or agency head or the governing board of the government-owned
or controlled corporation concerned, without need of prior approval by higher
authorities, subject to availability of funds, compliance with the standards or
guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the
commission on Audit in accordance with existing rules and regulations.
2.
Emergency purchases;
3.
4.
5.
Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make
it clear that only contracts for the purchase and sale of supplies, materials and
equipment are contemplated by the rule concerning public biddings.
Finally, it is contended that equipment leases are attractive and commonly
used in place of contracts of purchase and sale because of "multifarious credit
and tax constraints" and therefore could not have been left out from the
requirement of public bidding. Obviously these credit and tax constraints can
have no attraction to the government when considering the advantages of sale
over lease of equipment. The fact that lease contracts are in common use is
not a reason for implying that the rule on public bidding applies not only to
government purchases but also to lease contracts. For the fact also is that the
government leases equipment, such as copying machines, personal computers
and the like, without going through public bidding.
FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is
DENIED with finality. SO ORDERED.
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her
capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS,
Respondent.
CRUZ, J.:
violates their independence. He cites the practice in this Court, where the
senior Associate Justice serves as Acting Chief Justice in the absence of the
Chief Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is
necessary in the case of the Supreme Court because the temporary succession
cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is
found in Section 5 of BP 129 for the Court of Appeals. There is no such
arrangement, however, in the case of the Commission on Elections. The
designation made by the President of the Philippines should therefore be
sustained for reasons of "administrative expediency," to prevent disruption of
the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to
suggest that the operations of the Commission on Elections would have been
disturbed or stalemated if the President of the Philippines had not stepped in
and designated an Acting Chairman. There did not seem to be any such
problem. In any event, even assuming that difficulty, we do not agree that
"only the President (could) act to fill the hiatus," as the Solicitor General
maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the
Constitutional Commissions as "independent." Although essentially executive
in nature, they are not under the control of the President of the Philippines in
the discharge of their respective functions. Each of these Commissions
conducts its own proceedings under the applicable laws and its own rules and
in the exercise of its own discretion. Its decisions, orders and rulings are
subject only to review on Certiorari by this Court as provided by the
Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman
comes under that discretion. That discretion cannot be exercised for it, even
with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary
and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn by the President
of the Philippines at any time and for whatever reason she sees fit. It is
doubtful if the respondent, having accepted such designation, will not be
estopped from challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be
removed at will from her permanent position as Associate Commissioner. It is
no less true, however, that she can be replaced as Acting Chairman, with or
without cause, and thus deprived of the powers and perquisites of that
temporary position.
The lack of a statutory rule covering the situation at bar is no justification for
the President of the Philippines to fill the void by extending the temporary
designation in favor of the respondent. This is still a government of laws and
not of men. The problem allegedly sought to be corrected, if it existed at all,
did not call for presidential action. The situation could have been handled by
the members of the Commission on Elections themselves without the
participation of the President, however well-meaning.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal branches.
This Court is confronted with one such today involving the legislature and the
judiciary which has drawn legal luminaries to chart antipodal courses and not a
few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present
controversy subject of the instant petitions whether the filing of the second
impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the
House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question has
resulted in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to extraconstitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government by
no means prescribes for absolute autonomy in the discharge by each of that
part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of each
of these three branches must be given effect without destroying their
indispensable co-equality.
ERNESTO
B.
FRANCISCO,
REPRESENTATIVES,
THE
HOUSE
OF
have
the
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the Philippines is on trial,
the Chief Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of two-thirds of
all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment according
to law.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section. (Emphasis and
underscoring supplied)
11TH
RULES
CONGRESS
RULE II
RULE V
INITIATING
IMPEACHMENT
BAR
AGAINST
INITIATION
OF
IMPEACHMENT
PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 2. Mode of
Initiating
Impeachment.
Impeachment shall be
initiated only by a
verified complaint for
impeachment filed by
any Member of the
House
of
Representatives or by
any citizen upon a
resolution
of
endorsement by any
Member thereof or by a
verified complaint or
resolution
of
impeachment filed by at
least one-third (1/3) of
all the Members of the
House.
Section
16.
Impeachment
Proceedings Deemed Initiated. In
cases where a Member of the House files
a verified complaint of impeachment or a
citizen files a verified complaint that is
endorsed by a Member of the House
through a resolution of endorsement
against
an
impeachable
officer,
impeachment proceedings against such
official are deemed initiated on the day
the Committee on Justice finds that the
verified complaint and/or resolution
against such official, as the case may be,
is sufficient in substance, or on the date
the House votes to overturn or affirm the
finding of the said Committee that the
verified complaint and/or resolution, as
the case may be, is not sufficient in
substance.
In cases where a verified complaint or a
resolution of impeachment is filed or
endorsed, as the case may be, by at
least one-third (1/3) of the Members of
the House, impeachment proceedings
are deemed initiated at the time of
the filing of such verified complaint
or resolution of impeachment with
RULE V
BAR
AGAINST
IMPEACHMENT
Section 14. Scope of
Bar. No impeachment
proceedings shall be
initiated
against
the
same official more than
once within the period
of one (1) year.
On
July
22,
2002,
the
House
of
Representatives
adopted
a
Resolution,2 sponsored by Representative Felix William D. Fuentebella, which
directed the Committee on Justice "to conduct an investigation, in aid of
legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment
complaint4 (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of
the Constitution, betrayal of the public trust and other high crimes." 6 The
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen, 7 and was referred to the House
Committee on Justice on August 5, 2003 8 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members,
shall submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form," 9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance. 10 To date, the
Committee Report to this effect has not yet been sent to the House in plenary
in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on Justice
voted to dismiss it, the second impeachment complaint 11 was filed with the
Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr.
(First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines
Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results
of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the
Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of Article
XI of the Constitution that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he
has a duty as a member of the Integrated Bar of the Philippines to use all
available legal remedies to stop an unconstitutional impeachment, that the
issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress," 14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano Desierto had been
violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the
House of Representatives and prays that (1) Rule V, Sections 16 and 17 and
Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this
Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
the Constitution, to return the second impeachment complaint and/or strike it
off the records of the House of Representatives, and to promulgate rules which
are consistent with the Constitution; and (3) this Court permanently enjoin
respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and
taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance of a
writ "perpetually" prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with the Senate; and for
the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against
the Chief Justice or, in the event that the Senate has accepted the same, from
proceeding with the impeachment trial.
their petition for the issuance of a Temporary Restraining Order and Permanent
Injunction to enjoin the House of Representatives from proceeding with the
second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition
for Certiorari and Prohibition that the House Impeachment Rules be declared
unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al.,
in their petition for Prohibition and Injunction which they claim is a class suit
filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance of a writ
prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and
that this Court declare as unconstitutional the second impeachment complaint
and the acts of respondent House of Representatives in interfering with the
fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting
the House of Representatives from transmitting the Articles of Impeachment to
the Senate and the Senate from receiving the same or giving the impeachment
complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in
his petition for Prohibition that respondents Fuentebella and Teodoro at the
time they filed the second impeachment complaint, were "absolutely without
any legal power to do so, as they acted without jurisdiction as far as the
Articles of Impeachment assail the alleged abuse of powers of the Chief Justice
to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofilea, alleging that as professors of law they have an abiding interest in the
subject matter of their petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the minds of their
students," pray that the House of Representatives be enjoined from endorsing
and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is
founded on the issue of whether or not the Judicial Development Fund (JDF)
was spent in accordance with law and that the House of Representatives does
not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and
void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve
matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House
of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited from
accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null
and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the
first three of the eighteen which were filed before this Court, 18 prayed for the
issuance of a Temporary Restraining Order and/or preliminary injunction to
prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and
void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition, petition
bearing docket number G.R. No. 160292 alleged that House Resolution No. 260
(calling for a legislative inquiry into the administration by the Chief Justice of
the JDF) infringes on the constitutional doctrine of separation of powers and is
a direct violation of the constitutional principle of fiscal autonomy of the
judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded
to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court directed
him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution
of October 28, 2003, resolved to (a) consolidate the petitions; (b) require
respondent House of Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30 p.m. of November 3,
2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to maintain the
status quo, enjoining all the parties and others acting for and in their behalf to
refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through
Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special
appearance, submitted a Manifestation asserting that this Court has no
jurisdiction to hear, much less prohibit or enjoin the House of Representatives,
which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to
initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in
his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and
Comment, praying that "the consolidated petitions be dismissed for lack of
jurisdiction of the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and jurisdiction of the Senate
as the impeachment court to try and decide impeachment cases, including the
one where the Chief Justice is the respondent, be recognized and upheld
pursuant to the provisions of Article XI of the Constitution." 22
Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions; (b)
require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November 5,
2003.
On October 29, 2003, the Senate of the Philippines, through Senate President
Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned,
the petitions are plainly premature and have no basis in law or in fact, adding
that as of the time of the filing of the petitions, no justiciable issue was
presented before it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the
petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on October
28, 2003 on the ground that it would unnecessarily put Congress and this
Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
defense of political question. And the Supreme Court said: "Well, since
it is political, we have no authority to pass upon it." The Committee
on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as those
of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any
of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis
and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled
principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical terms are
employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36 this
Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given theirordinary
meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood
in the sense they have in common use. What it says according to
the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Thus these are the cases where the need for construction is reduced
to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its framers.
And so did this Court apply this principle in Civil Liberties Union v. Executive
Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been held
that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and
calculated to effect that purpose. 39 (Emphasis and underscoring
supplied)
As it did in Nitafan v. Commissioner on Internal Revenue 40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely assumed
that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.41 (Emphasis
and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a
whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could
not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could
also affect others.When they adopted subsection 2, they
permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that
great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that
no one provision of the Constitution is to be separated from
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives
the exclusive power to initiate impeachment cases, 55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one
and the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress and
the judiciary. Thus, they call upon this Court to exercise judicial statesmanship
on the principle that "whenever possible, the Court should defer to the
judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."56
But did not the people also express their will when they instituted the abovementioned safeguards in the Constitution? This shows that the Constitution did
not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the language
of Baker v. Carr,57"judicially discoverable standards" for determining the
validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases concern the
denial of petitions for writs of mandamus to compel the legislature to perform
non-ministerial acts, and do not concern the exercise of the power of judicial
review.
There is indeed a plethora of cases in which this Court exercised the power of
judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court
to inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the
petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of
the House of Representatives withdrawing the nomination, and rescinding the
election, of a congressman as a member of the House Electoral Tribunal for
being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of the
political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House
of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
Intervenor Soriano, in praying for the dismissal of the petitions, contends that
petitioners do not have standing since only the Chief Justice has sustained and
will sustain direct personal injury. Amicus curiae former Justice Minister and
Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them. 72 Amicus
curiae Dean Raul Pangalangan of the U.P. College of Law is of the same
opinion, citing transcendental importance and the well-entrenched rule
exception that, when the real party in interest is unable to vindicate his rights
by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure 73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan,
Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it
from real party-in-interest.
The difference between the rule on standing and real party in interest
has been noted by authorities thus: "It is important to note . . . that
standing because of its constitutional and public policy underpinnings,
is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all
three requirements are directed towards ensuring that only certain
parties can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating
to the proper role of the judiciary in certain areas.
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is being challenged. The
gist of the question of standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions. 69
xxx
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefited or injured by the
judgment, or the 'party entitled to the avails of the suit.'" 76 (Citations
omitted)
While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners
before us asserts a violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own rights as
taxpayers; members of Congress; citizens, individually or in a class suit; and
members of the bar and of the legal profession which were supposedly
violated by the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators
when specific requirements have been met have been given standing by this
Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or
act complained of.77 In fine, when the proceeding involves the assertion of a
public right,78 the mere fact that he is a citizen satisfies the requirement of
personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being deflected to
any improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law. 79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the public. 80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained. 81 This Court opts to grant standing to
most of the petitioners, given their allegation that any impending transmittal
to the Senate of the Articles of Impeachment and the ensuing trial of the Chief
Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official
action which he claims infringes his prerogatives as a legislator. 82 Indeed, a
member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his
office.83
While
an
association
has
legal
personality
to
represent
its
members,84 especially when it is composed of substantial taxpayers and the
outcome will affect their vital interests, 85 the mere invocation by
the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law and nothing more, although undoubtedly
true, does not suffice to clothe it with standing. Its interest is too general. It is
shared by other groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing
and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the interests
of all concerned87 to enable the court to deal properly with all interests
involved in the suit,88 for a judgment in a class suit, whether favorable or
unfavorable to the class, is, under the res judicata principle, binding on all
members of the class whether or not they were before the court. 89 Where it
clearly appears that not all interests can be sufficiently represented as shown
by the divergent issues raised in the numerous petitions before this Court, G.R.
No. 160365 as a class suit ought to fail. Since petitioners additionallyallege
standing as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of
transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397,
is mum on his standing.
There being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court Justice
Florentino P. Feliciano are instructive: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a
more direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied that the issues
raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public. 91 Such liberality does not, however, mean
that the requirement that a party should have an interest in the matter is
totally eliminated. A party must, at the very least, still plead the existence of
such interest, it not being one of which courts can take judicial notice. In
petitioner Vallejos' case, he failed to allege any interest in the case. He does
not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of
Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when
the applicant shows facts which satisfy the requirements of the law authorizing
intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save
for one additional issue, they raise the same issues and the same standing,
and no objection on the part of petitioners Candelaria, et. al. has been
interposed, this Court as earlier stated, granted the Motion for Leave of Court
to Intervene and Petition-in-Intervention.
In praying for the dismissal of the petitions, Soriano failed even to allege that
the act of petitioners will result in illegal disbursement of public funds or in
public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a
"Petition-in-Intervention with Leave to Intervene" to raise the additional issue
of whether or not the second impeachment complaint against the Chief Justice
is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines,
Inc. possess a legal interest in the matter in litigation the respective motions to
intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence of
the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in litigation, he being
a member of Congress against which the herein petitions are directed. For this
reason, and to fully ventilate all substantial issues relating to the matter at
hand, his Motion to Intervene was granted and he was, as earlier stated,
allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied
for, while he asserts an interest as a taxpayer, he failed to meet the standing
requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent
in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for
a case to be considered ripe for adjudication, "it is a prerequisite that
something had by then been accomplished or performed by either branch
before a court may come into the picture." 96 Only then may the courts pass on
the validity of what was done, if and when the latter is challenged in an
appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional
act should be accomplished and performed before suit, as Tan v.
Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions
are premature. Amicus curiae former Senate President Jovito R. Salonga opines
that there may be no urgent need for this Court to render a decision at this
time, it being the final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first be
exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who
suggests to this Court to take judicial notice of on-going attempts to encourage
signatories to the second impeachment complaint to withdraw their signatures
and opines that the House Impeachment Rules provide for an opportunity for
members to raise constitutional questions themselves when the Articles of
Impeachment are presented on a motion to transmit to the same to the
Senate. The dean maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the issue of their
constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article
XI of the Constitution97 and, therefore, petitioners would continue to suffer
their injuries.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact that,
I will speak on the judiciary. Practically, everybody has made, I suppose, the
usual comment that the judiciary is the weakest among the three major
branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of all other
powers without exception. x x x And so, with the body's indulgence, I will
proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Prior to the 1973 Constitution, without consistency and seemingly without any
rhyme or reason, this Court vacillated on its stance of taking cognizance of
cases which involved political questions. In some cases, this Court hid behind
the cover of the political question doctrine and refused to exercise its power of
judicial review.100 In other cases, however, despite the seeming political nature
of the therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and
took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign
capacity.
The frequency with which this Court invoked the political question doctrine to
refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its application
on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
Of these standards, the more reliable have been the first three: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards are
not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept
of judicial review is radically different from our current concept, for Section 1,
Article VIII of the Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a nonjusticiable political question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly acted within
such limits. This Court shall thus now apply this standard to the present
controversy.
These petitions raise five substantial issues:
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we
would
still
not
be
precluded
from
resolving
it
under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question.110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political
questions and non-justiciable political questions, however. Identification of
these two species of political questions may be problematic. There has been
no clear standard. The American case of Baker v. Carr111 attempts to provide
some:
x x x Prominent on the surface of any case held to involve a political
question
is
found
a textually
demonstrable
constitutional
commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a
political decision already made; or thepotentiality of embarrassment
from multifarious pronouncements by various departments on one
question.112(Underscoring supplied)
filed
in
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF, which
Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or
invalid, unless such question is raised by the parties and that when it
is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such
question will be unavoidable.116 [Emphasis and underscoring
supplied]
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue of
the validity of the second impeachment complaint. Moreover, the resolution of
said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative
inquiries in general, which would thus be broader than is required by the facts
of these consolidated cases. This opinion is further strengthened by the fact
that said petitioners have raised other grounds in support of their petition
which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate
Blue Ribbon Commttee,122 viz:
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis motaor crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by
the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is
applied."119
other office has the authority to do so. 128 On the occasion that this Court had
been an interested party to the controversy before it, it has acted upon the
matter "not with officiousness but in the discharge of an unavoidable duty and,
as always, with detachment and fairness." 129 After all, "by [his] appointment to
the office, the public has laid on [a member of the judiciary] their confidence
that [he] is mentally and morally fit to pass upon the merits of their varied
contentions. For this reason, they expect [him] to be fearless in [his] pursuit to
render justice, to be unafraid to displease any person, interest or power and to
be equipped with a moral fiber strong enough to resist the temptations lurking
in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that
case, the petitioners filed with the respondent Senate Electoral Tribunal a
Motion for Disqualification or Inhibition of the Senators-Members thereof from
the hearing and resolution of SET Case No. 002-87 on the ground that all of
them were interested parties to said case as respondents therein. This would
have reduced the Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to decide the matter. This
Court held:
Where, as here, a situation is created which precludes the substitution
of any Senator sitting in the Tribunal by any of his other colleagues in
the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Senators.
To our mind, this is the overriding consideration that the Tribunal be
not prevented from discharging a duty which it alone has the power to
perform, the performance of which is in the highest public interest as
evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senators
elect, six of whom would inevitably have to sit in judgment thereon.
Indeed, such possibility might surface again in the wake of the 1992
elections when once more, but for the last time, all 24 seats in the
Senate will be at stake. Yet the Constitution provides no scheme or
mode for settling such unusual situations or for the substitution of
Senators designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their trust and
hopes of vindication in the fairness and sense of justice of the
Members of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting
in judgment on any case before said Tribunal. Every Member of the
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in
the end there were not enough votes either to grant the petitions, or to sustain
respondent's claims,"140 the pre-existing constitutional order was disrupted
which paved the way for the establishment of the martial law regime.
not do their duty under the law to uphold the Constitution and obey the laws of
the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental
law of the land.
Substituting the word public officers for judges, this Court is well guided by the
doctrine in People v. Veneracion, towit:141
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries within
which they are required by law to exercise the duties of their office,
then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, [public officers] are guided by
the Rule of Law, and ought "to protect and enforce it without fear or
favor," resist encroachments by governments, political parties, or
even the interference of their own personal beliefs.142
Constitutionality
of
the
for
Impeachment
adopted by the 12th Congress
Rules
of
Procedure
Proceedings
the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do,
to begin, to commence, or set going. As Webster's Third New International
Dictionary of the English Language concisely puts it, it means "to perform
orfacilitate the first action," which jibes with Justice Regalado's position, and
that of Father Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a
comlexus of acts consisting of a beginning, a middle and an end. The
end is the transmittal of the articles of impeachment to the Senate.
The middle consists of those deliberative moments leading to the
formulation of the articles of impeachment. The beginning or the
initiation is the filing of the complaint and its referral to the Committee
on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that impeachment is
"deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after actual
initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking
into the intent of the law. Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure
and the substantive provisions on impeachment, I understand there
have been many proposals and, I think, these would need some time
for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies of which
have been furnished the Members of this body. This is borne out of my
experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the
information of the Committee, the resolution covers several
steps in the impeachment proceedings starting with initiation,
action of the Speaker committee action, calendaring of report,
voting on the report, transmittal referral to the Senate, trial
and judgment by the Senate.
xxx
that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate
fundamental rights, and further that there should be a reasonable relation
between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all
matters of method are open to the determination of the Legislature. In the
same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring
and Dissenting Opinion, was even more emphatic as he stressed that in the
Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases
involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as
a window to view the issues before the Court. It is in Ballin where the
US Supreme Court first defined the boundaries of the power of the
judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may
determine the rules of its proceedings." It appears that in pursuance
of this authority the House had, prior to that day, passed this as one of
its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum in the
hall of the House who do not vote shall be noted by the clerk and
recorded in the journal, and reported to the Speaker with the names of
the members voting, and be counted and announced in determining
the presence of a quorum to do business. (House Journal, 230, Feb. 14,
1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the Speaker
or clerk may of their own volition place upon the journal. Neither do
the advantages or disadvantages, the wisdom or folly, of such a rule
present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each
house to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate fundamental
the issues involved. Passions had ran high as demonstrators, whether for or
against the impeachment of the Chief Justice, took to the streets armed with
their familiar slogans and chants to air their voice on the matter. Various
sectors of society - from the business, retired military, to the academe and
denominations of faith offered suggestions for a return to a state of normalcy
in the official relations of the governmental branches affected to obviate any
perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and argued
to take no action of any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were knocking so to
speak at the doorsteps of this Court, the same clamor for non-interference was
made through what are now the arguments of "lack of jurisdiction," "nonjusticiability," and "judicial self-restraint" aimed at halting the Court from any
move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been already
explained, the Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty of judicial review
over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in
here is an issue of a genuine constitutional material which only this Court can
properly and competently address and adjudicate in accordance with the clearcut allocation of powers under our system of government. Face-to-face thus
with a matter or problem that squarely falls under the Court's jurisdiction, no
other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial supremacy,
is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court to assert
judicial dominance over the other two great branches of the government.
Rather, the raison d'etre of the judiciary is to complement the discharge by the
executive and legislative of their own powers to bring about ultimately the
beneficent effects of having founded and ordered our society upon the rule of
law.
It is suggested that by our taking cognizance of the issue of constitutionality of
the impeachment proceedings against the Chief Justice, the members of this
Court have actually closed ranks to protect a brethren. That the members'
interests in ruling on said issue is as much at stake as is that of the Chief
Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions. This
Court has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted to
wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official
act as tested by the limits set by the Constitution? Of course, there are rules
on the inhibition of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now from the suit at
bar is to regard the Supreme Court as likely incapable of impartiality when one
of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal
system which recognizes equality of all men before the law as essential to the
law's moral authority and that of its agents to secure respect for and
obedience to its commands. Perhaps, there is no other government branch or
instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning
and ramifications through its application to numerous cases especially of the
high-profile kind in the annals of jurisprudence. The Chief Justice is not above
the law and neither is any other member of this Court. But just because he is
the Chief Justice does not imply that he gets to have less in law than anybody
else. The law is solicitous of every individual's rights irrespective of his station
in life.
The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario Davide.
Accordingly, this Court has resorted to no other than the Constitution in search
for a solution to what many feared would ripen to a crisis in government. But
though it is indeed immensely a blessing for this Court to have found answers
in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve
differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in
Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of
Representatives on October 23, 2003 is barred under paragraph 5, section 3 of
Article XI of the Constitution.
SO ORDERED.