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G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all
surnamed OPOSA, minors, and represented by their
parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and
ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA,
all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R.
FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents
GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE
CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA.
ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all
surnamed ABAYA, minors, represented by their parents
ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and
MARIETTE, all surnamed CARDAMA, minors, represented by
their parents MARIO and LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors
and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES,
all surnamed QUIPIT, minors, represented by their parents
JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO,
ANNA, DANIEL and FRANCISCO, all surnamed BIBAL,

minors, represented by their parents FRANCISCO, JR. and

MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his
capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati,
Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to
a balanced and healthful ecology which the petitioners
dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it
touches on the issue of whether the said petitioners have a cause
of action to "prevent the misappropriation or impairment" of
Philippine rainforests and "arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother
Earth."
The controversy has its genesis in Civil Case No. 90-77 which was
filed before Branch 66 (Makati, Metro Manila) of the Regional Trial
Court (RTC), National Capital Judicial Region. The principal plaintiffs
therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as
an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The
original defendant was the Honorable Fulgencio S. Factoran, Jr.,
then Secretary of the Department of Environment and Natural

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Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The
complaint 2 was instituted as a taxpayers' class suit 3 and alleges
that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical
forests." The same was filed for themselves and others who are
equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is
prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives
and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in
the country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber
license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable
under the premises." 5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of thirty
million (30,000,000) hectares and is endowed with rich, lush and
verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also
the habitat of indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of
fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other
uses; the distortion and disturbance of this balance as a

consequence of deforestation have resulted in a host of

environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization
of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion
and the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size
of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous cultures, (f)
the siltation of rivers and seabeds and consequential destruction of
corals and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity
of typhoon winds which result from the absence of windbreakers,
(i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic
changes such as the phenomenon of global warming, otherwise
known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as
a matter of judicial notice. This notwithstanding, they expressed
their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION

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7. Plaintiffs replead by reference the foregoing
allegations.
8. Twenty-five (25) years ago, the Philippines had
some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land
mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's
land area.
10. More recent surveys reveal that a mere
850,000 hectares of virgin old-growth rainforests
are left, barely 2.8% of the entire land mass of the
Philippine archipelago and about 3.0 million
hectares of immature and uneconomical secondary
growth forests.
11. Public records reveal that the defendant's,
predecessors have granted timber license
agreements ('TLA's') to various corporations to cut
the aggregate area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the corresponding
areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about
200,000 hectares per annum or 25 hectares per
hour nighttime, Saturdays, Sundays and
holidays included the Philippines will be bereft of
forest resources after the end of this ensuing
decade, if not earlier.
13. The adverse effects, disastrous consequences,
serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn

are evident and incontrovertible. As a matter of

fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt,
experienced and suffered by the generation of
plaintiff adults.
14. The continued allowance by defendant of TLA
holders to cut and deforest the remaining forest
stands will work great damage and irreparable
injury to plaintiffs especially plaintiff minors and
their successors who may never see, use,
benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a
misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit
of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right
to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as
the parens patriae.
16. Plaintiff have exhausted all administrative
remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final
demand to cancel all logging permits in the
country.
A copy of the plaintiffs' letter dated March 1, 1990
is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel
the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant
to cancel the TLA's is an act violative of the rights
of plaintiffs, especially plaintiff minors who may be

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left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and
indigenous cultures which the Philippines had been
abundantly blessed with.

d. "protect and advance the right of the people to a

balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16,
Article II, id.)

19. Defendant's refusal to cancel the

aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine
Environmental Policy which, in pertinent part,
states that it is the policy of the State

21. Finally, defendant's act is contrary to the

highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and
perpetuation.

(a) to create, develop, maintain and improve

conditions under which man and nature can thrive
in productive and enjoyable harmony with each
other;
(b) to fulfill the social, economic and other
requirements of present and future generations of
Filipinos and;
(c) to ensure the attainment of an environmental
quality that is conductive to a life of dignity and
well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to
cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to
a. effect "a more equitable distribution of
opportunities, income and wealth" and "make full
and efficient use of natural resources (sic)."
(Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section
2, ibid);
c. "conserve and promote the nation's cultural
heritage and resources (sic)" (Section 14, Article
XIV,id.);

22. There is no other plain, speedy and adequate

remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's
vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr.,
filed a Motion to Dismiss the complaint based on two (2) grounds,
namely: (1) the plaintiffs have no cause of action against him and
(2) the issue raised by the plaintiffs is a political question which
properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's
abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was
the defendant's claim that the complaint states no cause of
action against him and that it raises a political question
sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts
which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the
ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors

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not only represent their children, but have also joined the latter in
this case. 8
On 14 May 1992, We resolved to give due course to the petition
and required the parties to submit their respective Memoranda
after the Office of the Solicitor General (OSG) filed a Comment in
behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably
states a cause of action as it contains sufficient allegations
concerning their right to a sound environment based on Articles 19,
20 and 21 of the Civil Code (Human Relations), Section 4 of
Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing
the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's
alleged grave abuse of discretion in granting Timber License
Agreements (TLAs) to cover more areas for logging than what is
available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's
non-impairment clause, petitioners maintain that the same does
not apply in this case because TLAs are not contracts. They
likewise submit that even if TLAs may be considered protected by
the said clause, it is well settled that they may still be revoked by
the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed
to allege in their complaint a specific legal right violated by the
respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens

patriae." Such allegations, according to them, do not reveal a valid

cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging
totally.
As to the matter of the cancellation of the TLAs, respondents
submit that the same cannot be done by the State without due
process of law. Once issued, a TLA remains effective for a certain
period of time usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless
the holder has been found, after due notice and hearing, to have
violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural
matters. Petitioners instituted Civil Case No. 90-777 as a class suit.
The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint
is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so
numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to
ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3
of the Revised Rules of Court are present both in the said civil case
and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners
minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they
can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in

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behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created
world in its entirety. 9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as
future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for
the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of
their obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been addressed, We
shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues raised and
arguments adduced by the parties, We do not hesitate to find for
the petitioners and rule against the respondent Judge's challenged
order for having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent portions of the said
order reads as follows:

Rule 2, RRC). Furthermore, the Court notes that the

Complaint is replete with vague assumptions and
vague conclusions based on unverified data. In
fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the
matter before it, being impressed with political
color and involving a matter of public policy, may
not be taken cognizance of by this Court without
doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal
branches of the Government.
The Court is likewise of the impression that it
cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the
country and to cease and desist from receiving,
accepting, processing, renewing or approving new
timber license agreements. For to do otherwise
would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs
failed to allege with sufficient definiteness a specific legal right
involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions
based on unverified data. A reading of the complaint itself belies
these conclusions.

xxx xxx xxx

After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with
the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it
(sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking
to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1,

The complaint focuses on one specific fundamental legal right

the right to a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated
in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:
Sec. 16. The State shall protect and advance the
right of the people to a balanced and healthful

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ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is
provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the
right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found
under the Declaration of Principles and State Policies and not under
the Bill of Rights, it does not follow that it is less important than
any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is because of
the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost
not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. During
the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired
between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:
Does this section mandate the
State to provide sanctions against
all forms of pollution air, water
and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to
healthful (sic) environment
necessarily carries with it the
correlative duty of not impairing
the same and, therefore, sanctions
may be provided for impairment of
environmental balance. 12
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental
balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related
provisions of the Constitution concerning the conservation,
development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates
that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the
conservation, management, development and proper use of the
country's environment and natural resources, specifically forest
and grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public domain,
as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and
future generations of Filipinos." Section 3 thereof makes the
following statement of policy:

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Sec. 3. Declaration of Policy. It is hereby
declared the policy of the State to ensure the
sustainable use, development, management,
renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural
resources, including the protection and
enhancement of the quality of the environment,
and equitable access of the different segments of
the population to the development and the use of
the country's natural resources, not only for the
present generation but for future generations as
well. It is also the policy of the state to recognize
and apply a true value system including social and
environmental cost implications relative to their
utilization, development and conservation of our
natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV
of the Administrative Code of 1987, 15specifically in Section 1
thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall
ensure, for the benefit of the Filipino people, the
full exploration and development as well as the
judicious disposition, utilization, management,
renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with
the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality
of the environment and the objective of making the
exploration, development and utilization of such
natural resources equitably accessible to the
different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a
true value system that takes into account social
and environmental cost implications relative to the
utilization, development and conservation of our
natural resources.

The above provision stresses "the necessity of maintaining a sound

ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes
particular reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of
Environment and Natural Resources shall be
primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be
in charge of carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set
the objectives which will serve as the bases for policy formulation,
and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the
1987 Constitution, specific statutes already paid special attention
to the "environmental right" of the present and future generations.
On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy)
and P.D. No. 1152 (Philippine Environment Code) were issued. The
former "declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on
the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty

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under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 to protect and
advance the said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same gives
rise to a cause of action. Petitioners maintain that the granting of
the TLAs, which they claim was done with grave abuse of
discretion, violated their right to a balanced and healthful ecology;
hence, the full protection thereof requires that no further TLAs
should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of
the legal right or rights of the other; and its
essential elements are legal right of the plaintiff,
correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal
right. 18
It is settled in this jurisdiction that in a motion to dismiss based on
the ground that the complaint fails to state a cause of action, 19 the
question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the
said allegations is beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the
complaint? 20 InMilitante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground
of the absence thereof [cause of action] lest, by its failure to
manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the

statements under the introductory affirmative allegations, as well
as the specific averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be
granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a
political question. Policy formulation or determination by the
executive or legislative branches of Government is not squarely put
in issue. What is principally involved is the enforcement of a
right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review.
The second paragraph of section 1, Article VIII of the Constitution
states that:
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.
Commenting on this provision in his book, Philippine Political
Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this
Court, says:
The first part of the authority represents the
traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law.
The second part of the authority represents a
broadening of judicial power to enable the courts of
justice to review what was before forbidden

10
territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary,
and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the
executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion.
The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase
that can expand or contract according to the
disposition of the judiciary.
In Daza vs. Singson,
Court, noted:

23

Mr. Justice Cruz, now speaking for this

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
revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper
cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found in the
Constitution. The court a quo declared that:
The Court is likewise of the impression that it
cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the
country and to cease and desist from receiving,
accepting, processing, renewing or approving new
timber license agreements. For to do otherwise
would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not

shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done
so, he would have acted with utmost infidelity to the Government
by providing undue and unwarranted benefits and advantages to
the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to
their terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as
correctly pointed out by the petitioners, into every timber license
must be read Section 20 of the Forestry Reform Code (P.D. No. 705)
which provides:
. . . Provided, That when the national interest so
requires, the President may amend, modify,
replace or rescind any contract, concession,
permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of
the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the
State regulates the utilization and disposition of
forest resources to the end that public welfare is
promoted. A timber license is not a contract within
the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn
whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal,
granting it and the person to whom it is granted;
neither is it property or a property right, nor does it

11
create a vested right; nor is it taxation (37 C.J.
168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither
is it property or property rights (People vs. Ong Tin,
54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc.
vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license
agreements are the principal instruments by which
the State regulates the utilization and disposition of
forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular
concession area and the forest products therein.
They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed
contracts within the purview of the due process of
law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director
of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302].
Since timber licenses are not contracts, the non-impairment
clause, which reads:
Sec. 10. No law impairing, the obligation of
contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an
executive issuance declaring the cancellation or modification of
existing timber licenses. Hence, the non-impairment clause cannot
as yet be invoked. Nevertheless, granting further that a law has

actually been passed mandating cancellations or modifications, the

same cannot still be stigmatized as a violation of the nonimpairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the right of
the people to a balanced and healthful ecology, promoting their
health and enhancing the general welfare. In Abe vs. Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of
government, is not meant to be absolute. The
same is understood to be subject to reasonable
legislative regulation aimed at the promotion of
public health, moral, safety and welfare. In other
words, the constitutional guaranty of nonimpairment of obligations of contract is limited by
the exercise of the police power of the State, in the
interest of public health, safety, moral and general
welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General, 30 to wit:
Under our form of government the use of property
and the making of contracts are normally matters
of private and not of public concern. The general
rule is that both shall be free of governmental
interference. But neither property rights nor
contract rights are absolute; for government
cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise
his freedom of contract to work them harm. Equally
fundamental with the private right is that of the
public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power
of the state. 31

12
Finally, it is difficult to imagine, as the trial court did, how the nonimpairment clause could apply with respect to the prayer to enjoin
the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not
entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is
hereby GRANTED, and the challenged Order of respondent Judge of
18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside.
The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber
license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

13
G.R. No. 183591 - THE PROVINCE OF NORTH COTABATO, ET
AL. v. THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
ET AL.
G.R. No. 183752 - CITY GOVERNMENT OF ZAMBOANGA, ET
AL. v. THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
ET AL.
G.R. No. 183893 - THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAURENCE LLUCH CRUZ v.THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), ET AL.
G.R. No. 183951 - THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA DEL NORTE, as represented by HON.
ROLANDO E. YEBES, ET AL. v. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), ET AL.
x----------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitionersin-intervention.
x----------------------------------x
MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioner-in-intervention.
x----------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioner-inintervention.
x----------------------------------x
THE PROVINCE OF SULTAN KUDARAT, represented by HON.
SUHARTO T. MANGUDDATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan
Kudarat, petitioner-in-intervention.
x----------------------------------x
RUY ELIAS LOPEZ, petitioner-in-intervention.
x----------------------------------x
CARLO B. GOMEZ, ET AL., petitioner-in-intervention.
x-------------------------------------------------x
SEPARATE OPINION
CHICO-NAZARIO, J.:
The piece of writing being assailed in these consolidated Petitions
is a peace negotiation document, namely theMemorandum of
Agreement on the Ancestral Domain Aspect of the GRPMILF Tripoli Agreement of Peace of 2001 (MOA). The Solicitor

General explained that this document, prepared by the joint efforts

of the Government of the Republic of the Philippines (GRP) Peace
Panel and the Moro Islamic Liberation Front (MILF) Peace Panel, was
merely a codification of consensus points reached between both
parties and the aspirations of the MILF to have a Bangsamoro
homeland.1 Subsequently, the Solicitor General moved for the
dismissal of the consolidated cases at bar based on changed
circumstances as well as developments which have rendered them
moot, particularly the Executive Department's statement that it
would no longer sign the questioned peace negotiation
document.2 Nonetheless, several parties to the case, as well as
other sectors, continue to push for what they call a "complete
determination" of the constitutional issues raised in the present
Petitions.
I believe that in light of the pronouncement of the Executive
Department to already abandon the MOA, the issue of its
constitutionality has obviously become moot.
The rule is settled 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, namely: that the question must be raised by the
proper party; that there must be an actual case or controversy;
that the question must be raised at the earliest possible
opportunity; and, that the decision on the constitutional or legal
question must be necessary to the determination of the case itself.
But the most important are the first two requisites.3
For a court to exercise its power of adjudication, there must be an
actual case or controversy one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based
on extra-legal or other similar considerations not cognizable
by a court of justice. A case becomes moot and academic when its
purpose has become stale.4 An action is considered "moot"
when it no longer presents a justiciable controversy because
the issues involved have become academic or dead or when
the matter in dispute has already been resolved and hence, one is
not entitled to judicial intervention unless the issue is likely to be
raised again between the parties. Simply stated, there is nothing
for the court to resolve as the determination thereof has been
overtaken by subsequent events.5
Such is the case here.
The MOA has not even been signed, and will never be. Its
provisions will not at all come into effect. The MOA will forever
remain a draft that has never been finalized. It is now nothing more

14
than a piece of paper, with no legal force or binding effect. It
cannot be the source of, nor be capable of violating, any right. The
instant Petitions, therefore, and all other oppositions to the MOA,
have no more leg to stand on. They no longer present an actual
case or a justiciable controversy for resolution by this Court.
An actual case or controversy exists when there is a conflict of
legal rights or an assertion of opposite legal claims, which can be
resolved on the basis of existing law and jurisprudence. A
justiciable controversy is distinguished from a hypothetical or
abstract difference or dispute, in that the former involves a definite
and concrete dispute touching on the legal relations of parties
having adverse legal interests. A justiciable controversy admits of
specific relief through a decree that is conclusive in character,
whereas an opinion only advises what the law would be upon a
hypothetical state of facts.6
For the Court to still rule upon the supposed unconstitutionality of
the MOA will merely be an academic exercise. It would, in effect,
only be delivering an opinion or advice on what are now
hypothetical or abstract violations of constitutional rights.
In Abbas v. Commission on Elections,7 the 1976 Tripoli Agreement
and Republic Act No. 6734 (the Organic Act for the Autonomous
Region in Muslim Mindanao) were challenged for purported
violations of the provisions of the Constitution on freedom of
religion. The Court held therein that it should not inquire into the
constitutionality of a peace agreement which was already
consummated (the 1976 Tripoli Agreement) and an Organic Act
which was already passed into law (R.A. No. 6734) just because of
potential conflicts with the Constitution. Then, with more reason
should this Court desist from ruling on the constitutionality of the
MOA which is unsigned, and now entirely abandoned, and as such,
cannot even have any potential conflict with the Constitution.
The Court should not feel constrained to rule on the Petitions at bar
just because of the great public interest these cases have
generated. We are, after all, a court of law, and not of public
opinion. The power of judicial review of this Court is for settling real
and existent dispute, it is not for allaying fears or addressing public
clamor. In acting on supposed abuses by other branches of
government, the Court must be careful that it is not committing
abuse itself by ignoring the fundamental principles of constitutional
law.
The Executive Department has already manifested to this Court,
through the Solicitor General, that it will not sign the MOA in its
present form or in any other form. It has declared the same
intent to the public. For this Court to insist that the issues raised in

the instant Petitions cannot be moot for they are still capable of
repetition is to totally ignore the assurance given by the Executive
Department that it will not enter into any other form of the MOA in
the future. The Court cannot doubt the sincerity of the Executive
Department on this matter. The Court must accord a co-equal
branch of the government nothing less than trust and the
presumption of good faith.
Moreover, I deem it beyond the power of this Court to enjoin the
Executive Department from entering into agreements similar to the
MOA in the future, as what petitioners and other opponents of the
MOA pray for. Such prayer once again requires this Court to make a
definitive ruling on what are mere hypothetical facts. A decree
granting the same, without the Court having seen or considered
the actual agreement and its terms, would not only be premature,
but also too general to make at this point. It will perilously tie the
hands of the Executive Department and limit its options in
negotiating peace for Mindanao.
Upon the Executive Department falls the indisputably difficult
responsibility of diffusing the highly volatile situation in Mindanao
resulting from the continued clashes between the Philippine
military and Muslim rebel groups. In negotiating for peace, the
Executive Department should be given enough leeway and should
not be prevented from offering solutions which may be beyond
what the present Constitution allows, as long as such solutions are
agreed upon subject to the amendment of the Constitution by
completely legal means.
Peace negotiations are never simple. If neither party in such
negotiations thinks outside the box, all they would arrive at is a
constant impasse. Thus, a counsel for one of the intervenors who
assert the unconstitutionality of the MOA8 had no choice but to
agree as follows:
ASSOCIATE JUSTICE QUISUMBING: Well, we realize the
constitutional constraints of sovereignty, integrity and the
like, but isn't there a time that surely will come and the life
of our people when they have to transcend even these
limitations?
DEAN AGABIN: Yes, we have seen it happen in several
instances, Your Honor.
xxx
ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that
purpose, the Supreme Court cannot look beyond the
horizon and look for more satisfying result?

15
DEAN AGABIN: Well, if you mean by looking beyond the
horizon, it would mean a violation of the provisions of the
Constitution, then it should not be, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: In some part, we have
gone to Malaysia. We have gone to the OIC, and we have
even gone to Libya.
DEAN AGABIN: Yes, Your Honor. But in all these, we have
always insisted on preserving the territorial integrity of the
country.
ASSOCIATE JUSTICE QUISUMBING: And this dicta or
[dogma] is unassailable forever. There cannot be an
exception.
DEAN AGABIN: It is unassailable under the present
Constitution, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: But, at least, you can
also agree that the Constitution ought to be changed in
order for a country to fulfill its internal obligation as a
matter of necessity.
DEAN AGABIN: Yes, if the people so will it, your Honor.
ASSOCIATE JUSTICE QUISUMBING: You remember how the
emperor of Japan lost his divinity? They just changed their
Constitution, isn't it?
DEAN AGABIN: Yes, it was enforced upon him by Mr.
McArthur, and they have no choice.
ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good
example of thinking outside the box? That one day even
those who are underground may have to think. But frankly
now Dean, before I end, may I ask, is it possible to meld or
modify our Constitutional Order in order to have some
room for the newly developing international notions on
Associative Governance Regulation Movement and Human
Rights?
DEAN AGABIN: Yes. It is possible, Your Honor, with the
consent of the people.
ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote
it to a referendum or any consultation beforehand?
DEAN AGABIN: If there is such a proposal for or
amendment or revision of the Constitution, yes, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: So, either initiative or
CHA-CHA or CON-AS?
DEAN AGABIN: Yes, Your Honor.9
It must be noted that the Constitution has been in force for three
decades now, yet, peace in Mindanao still remained to be elusive
under its present terms. There is the possibility that the solution to

the peace problem in the Southern Philippines lies beyond the

present Constitution. Exploring this possibility and considering the
necessary amendment of the Constitution are not per se
unconstitutional. The Constitution itself implicitly allows for its own
amendment by describing, under Article XVII, the means and
requirements therefor. In Tan v. Macapagal,10 where petitioners
claim that the Constitutional Convention was without power to
consider, discuss, or adopt proposals which seek to revise the
Constitution through the adoption of a form of government other
than the form outlined in the then governing Constitution, the
Court ruled that:
[A]s long as any proposed amendment is still unacted on
by [the Convention], there is no room for the interposition
of judicial oversight. Only after it has made concrete what
it intends to submit for ratification may the appropriate
case be instituted. Until then, the Courts are devoid of
jurisdiction. x x x.
At this point, there is far from a concrete proposed amendment to
the Constitution which the Court can take cognizance of, much less
render a pronouncement upon.
At most, the Court can only exhort the Executive Department to
keep in mind that it must negotiate and secure peace in Mindanao
under terms which are most beneficial for the country as a whole,
and not just one group of Muslim insurgents. Transparency and
consultation with all major players, which necessarily include
affected local government units and their constituents, are
essential to arrive at a more viable and acceptable peace plan. The
nature and extent of any future written agreements should be
clearly established from the very beginning, and the terms thereof
carefully drafted and clearly worded, to avoid misunderstandings
or misconstructions by the parties and the public. If a document is
meant to be a list of consensus points still subject to further
negotiations, then it should just simply state so.
As a final note, I find it necessary to stress that the Court must not
allow itself to be mired in controversies affecting each step of the
peace process in Mindanao. It is not within the province or even the
competence of the Judiciary to tell the Executive Department
exactly what and what not, how and how not, to negotiate for
peace with insurgents. Given this kind of situation where war and
peace hang in the balance, where people's lives are at stake, and
the Executive Department, under its residual powers, is tasked to
make political decisions in order to find solutions to the insurgency
problem, the Court should respect the political nature of the issues

16
at bar and exercise judicial restraint until an actual controversy is
brought before it.
In view of the foregoing, I vote for the GRANT of the Motion to
Dismiss filed by the Solicitor General and, accordingly, for
the DISMISSAL of the Petitions at bar for
being MOOT and ACADEMIC.
MINITA V. CHICO-NAZARIO
Associate Justice

17
G.R. No. L-2855
July 30, 1949
BORIS MEJOFF, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor
Lucas Lacson for respondent.
BENGZON, J.:
The petitioner Boris Mejoff is an alien of Russian descent who was
brought to this country from Shanghai as a secret operative by the
Japanese forces during the latter's regime in these Islands. Upon
liberation he was arrested aa a Japanese spy, by U. S. Army
Counter Intelligence Corps. Later he was handed to the
Commonwealth Government for disposition in accordance with
Commonwealth Act No. 682. Thereafter the People's Court ordered
his release. But the deportation board taking his case up, found
that having no travel documents Mejoff was illegally in this
country, and consequently refferd the matter to the immigration
authorities. After the corresponding investigation, the Board oF
Commissioners of Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in 1944,
withoutinspection and admission by the immigration officials at a
designated port of entry and, therefore, it ordered that he be
deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on
March 18, 1948. In May, 1948, he was transferred to the Cebu
Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and in August of that year
two boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging
lack of authority to do so. In October, 1948, after repeated failures
to ship this deportee abroad, the authorities removed him to Bilibid
Prison at Muntinglupa where he has been confined up to the
present time, inasmuch as the Commissioner of Immigration
believes it is for the best interest of the country to keep him under
detention while arrangements for his deportation are being made.
It is contended on behalf of petitioner that having been brought to
the Philippines legally by the Japanese forces, he may not now be
deported. It is enough to say that the argument would deny to this
Government the power and the authority to eject from the Islands
any and all of that members of the Nipponese Army of occupation
who may still be found hiding in remote places. Which is absurd.
Petitioner likewise contends that he may not be deported because
the statutory period to do that under the laws has long expired.
The proposition has no basis. Under section 37 of the Philippine

Immigration Act of 1940 any alien who enters this country "without
inspection and admission by the immigration authorities at a
designated point of entry" is subject to deportation within five
years. In a recent decision of a similar litigation (Borovsky vs.
Commissioner of Immigration) we denied the request for habeas
corpus, saying:
"It must be admitted that temporary detention is a necessary step
in the process of exclusion or expulsion of undesirable aliens and
that pending arrangements for his deportation, the Government
has the right to hold the undesirable alien under confinement for a
reasonable lenght of time. However, under established precedents,
too long a detention may justify the issuance of a writ of habeas
corpus.1
"The meaning of "reasonable time" depends upon the
circumstances, specially the difficulties of obtaining a passport, the
availability of transfortation, the diplomatic arrangements
concerned and the efforts displayed to send the deportee
away.2 Considering that this Government desires to expel the alien,
and does not relish keeping him at the people's expense, we must
presume it is making efforts to carry out the decree of exclusion by
the highest officer of the land. On top of this presumption
assurances were made during the oral argument that the
Government is really trying to expedite the expulsion of this
petitioner. On the other hand, the record fails to show how long he
has been under confinement since the last time he was
apprehended. Neither does he indicate neglected opportunities to
send him abroad. And unless it is shown that the deportee is being
indefinitely imprisoned under the pretense of awaiting a chance for
deportation3 or unless the Government admits that itcan not
deport him4 or unless the detainee is being held for too long a
period our courts will not interfere.
"In the United States there were at least two instances in which
courts fixed a time limit within which the imprisoned aliens should
be deported5 otherwise their release would be ordered by writ of
habeas corpus. Nevertheless, supposing such precedents apply in
this jurisdiction, still we have no sufficient data fairly to fix a
definite deadline."
The difference between this and the Borovsky case lies in the fact
that the record shows this petitioner has been detained since
March, 1948. However, considering that in the United States
(where transportation facilities are much greater and diplomatic
arrangements are easier to make) a delay of twenty months in
carrying out an order of deportation has not been held sufficient to

18
justify the issuance of the writ of habeas corpus,6 this petition must
be, and it is hereby denied. So ordered.
Moran, C.J., Ozaeta, Padilla, Montemayor and Reyes, JJ., concur.
Paras, J., I dissent for the same reasons stated in my dissenting
opinion in case No. L-2852.
Feria, J., I dissent on the same ground stated in my dissent in case
G. R. No. L-2852.

Separate Opinions
PERFECTO, J., dissenting:
To continue keeping petitioner under confinement is a thing that
shocks conscience. Under the circumstances, petitioner is entitled
to be released from confinement. He has not been convicted for
any offense for which he may be imprisoned. Government's
inability to deport him no pretext to keep him imprisoned for an
indefinite length of time. The constitutional guarantee that no
person shall be deprived of liberty without due process of law has
been intended to protect all inhabitants or residents who may
happen to be under the shadows of Philippine flag.
Our vote is the same as one we cast when the case of Borovsky vs.
Commissioner of Immigration, L-2852, was submitted for decision
although, for some misunderstanding, our vote was overlooked at
the time of the decision was promulgated. Our vote is to grant the
petition and to order the immediate release of petitioner, without
prejudice for the government to deport him as soon as the
government could have the means to do so. In the meantime,
petitioner is entitled to live a normal life in a peaceful country,
ruled by the principles of law and justice.
Tuason, J., I dissent on the same ground stated in my dissent in
case No. L-2852.

19
G.R. No. L-2662
March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel
IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A.
Arcilla and S. Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and
19444 who is now charged before a military Commission convened
by the Chief of Staff of the Armed forces of the Philippines with
having unlawfully disregarded and failed "to discharge his duties as
such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of
the Imperial Japanese Forces in violation of the laws and customs
of war" comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the
Philippines: to enjoin and prohibit respondents Melville S. Hussey
and Robert Port from participating in the prosecution of petitioner's
case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal
arguments.
First. "That Executive Order No. 68 is illegal on the ground that it
violates not only the provision of our constitutional law but also our
local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional
law an illegal order this commission is without jurisdiction to try
herein petitioner."
Second. That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law
in the Philippines is a diminution of our personality as an

independent state and their appointment as prosecutor are a

violation of our Constitution for the reason that they are not
qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as
prosecution the United State not being a party in interest in the
case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the
29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3,
that
The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of
international law as part of the of the nation.
In accordance with the generally accepted principle of international
law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international
jurisprudence established by the United Nation all those person
military or civilian who have been guilty of planning preparing or
waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the
laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the President of the
Philippines has acted in conformity with the generally accepted
and policies of international law which are part of the our
Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L129, 42 Off. Gaz., 664) 1when we said
War is not ended simply because hostilities have ceased.
After cessation of armed hostilities incident of war may
remain pending which should be disposed of as in time of
war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to
repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to
thwart or impede our military effort have violated the law
of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war.
And in the language of a writer a military commission has

20
jurisdiction so long as a technical state of war continues.
This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may
extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war namely
the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and regulation of
the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In
facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories
to the two Convention, Such rule and principles therefore form part
of the law of our nation even if the Philippines was not a signatory
to the conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined
to the recognition of rule and principle of international law as
continued inn treaties to which our government may have been or
shall be a signatory.
Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the
United States and with Japan to the right and obligation contained
in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If
at all our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76
Phil., 372):
. . . The change of our form government from
Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed
during then Commonwealth because it is an offense
against the same sovereign people. . . .

By the same token war crimes committed against our people and
our government while we were a Commonwealth are triable and
punishable by our present Republic.
Petitioner challenges the participation of two American attorneys
namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice
law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our
national sovereignty.
In the first place respondent Military Commission is a special
military tribunal governed by a special law and not by the Rules of
court which govern ordinary civil court. It has already been shown
that Executive Order No. 68 which provides for the organization of
such military commission is a valid and constitutional law. There is
nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that counsel for
the parties are usually military personnel who are neither attorneys
nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes
against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes.
If there has been any relinquishment of sovereignty it has not been
by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least
that we could do in the spirit of comity is to allow them
representation in said trials.
Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port
as prosecutors. It is of common knowledge that the United State
and its people have been equally if not more greatly aggrieved by
the crimes with which petitioner stands charged before the Military
Commission. It can be considered a privilege for our Republic that
a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid
law with jurisdiction over the crimes charged which fall under the
provisions of Executive Order No. 68, and having said petitioner in
its custody, this Court will not interfere with the due process of
such Military commission.
For all the foregoing the petition is denied with costs de oficio.

21
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try
Lt. Gen. Shigenori Kuroda for Violation of the laws and customs of
land warfare.
Melville S. Hussey and Robert Port, American citizens and not
authorized by the Supreme Court to practice law were appointed
prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive
Order No. 68 of the President of the Philippines the validity of
which is challenged by petitioner on constitutional grounds.
Petitioner has also challenged the personality of Attorneys Hussey
and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948
in the name of the people of the Philippines as accusers.
We will consideration briefly the challenge against the appearance
of Attorneys Hussey and Port. It appearing that they are aliens and
have not been authorized by the Supreme Court to practice law
there could not be any question that said person cannot appear as
prosecutors in petitioner case as with such appearance they would
be practicing law against the law.
Said violation vanishes however into insignificance at the side of
the momentous question involved in the challenge against the
validity of Executive Order No. 68. Said order is challenged on
several constitutional ground. To get a clear idea of the question
raised it is necessary to read the whole context of said order which
is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE
AND PRESCRIBING RULES AND REGULATION
GOVERNING THE TRIAL OF ACCUSED WAR
CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the
power vested in me by the Constitution and laws of the
Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the
speedy trial of all Japanese accused of war crimes
committed in the Philippines and prescribe the rules and
regulation such trial.
The National War crimes office is established within the
office of the Judge Advocate General of the Army of the

Philippines and shall function under the direction

supervision and control of the Judge Advocate General. It
shall proceed to collect from all available sources evidence
of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941,
maintain a record thereof and bring about the prompt trial
maintain a record thereof and bring about the prompt trial
of the accused.
The National War Crimes Office shall maintain direct liaison
with the Legal Section General Headquarters, Supreme
Commander for the Allied power and shall exchange with
the said Office information and evidence of war crimes.
The following rules and regulation shall govern the trial off
person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be
tried by military commission to be convened by or under
the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed
hereunder shall have jurisdiction over all persons charged
with war crimes who are in the custody of the convening
authority at the time of the trial.
(b) Over Offenses. The military commission established
hereunder shall have jurisdiction over all offenses including
but not limited to the following:
(1) The planning preparation initiation or waging of a war
of aggression or a war in violation of international treaties
agreement or assurance or participation in a common plan
or conspiracy for the accomplishment of any of the
foregoing.
(2) Violation of the laws or customs of war. Such violation
shall include but not be limited to murder ill-treatment or
deportation to slave labor or for other purpose of civilian
population of or in occupied territory; murder or illtreatment of prisoners of war or internees or person on the
seas or elsewhere; improper treatment of hostage; plunder
of public or private property wanton destruction of cities
towns or village; or devastation not justified by military
necessity.
(3) Murder extermination enslavement deportation and
other inhuman acts committed against civilian population
before or during the war or persecution on political racial or
religion ground in executive of or in connection with any

22
crime defined herein whether or not in violation of the local
laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military
commission shall be appointed by the President of the
Philippines or under authority delegated by him. Alternates
may be appointed by the convening authority. Such shall
attend all session of the commission, and in case of illness
or other incapacity of any principal member, an alternate
shall take the place of that member. Any vacancy among
the members or alternates, occurring after a trial has
begun, may be filled by the convening authority but the
substance of all proceeding had evidence taken in that
case shall be made known to the said new member or
alternate. This facts shall be announced by the president of
the commission in open court.
(b) Number of Members. Each commission shall consist
of not less than three (3) members.
(c) Qualifications. The convening authority shall appoint
to the commission persons whom he determines to be
competent to perform the duties involved and not
disqualified by personal interest or prejudice, provided that
no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a
witness is required. One specially qualified member whose
ruling is final in so far as concerns the commission on an
objection to the admissibility of evidence offered during the
trial.
(d) Voting. Except as to the admissibility of evidence all
rulings and finding of the Commission shall be by majority
vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence
shall be by the affirmative vote of not less than two-thirds
(2\3) of the member present.
(e) Presiding Member. In the event that the convening
authority does not name one of the member as the
presiding member, the senior officer among the member of
the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall
designate one or more person to conduct the prosecution
before each commission.
(b) Duties. The duties of the prosecutor are:

(1) To prepare and present charges and specifications for

reference to a commission.
(2) To prepare cases for trial and to conduct the
prosecution before the commission of all cases referred for
trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious
hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any
unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt,
imposing any appropriate punishment therefor.
(3) Hold public session when otherwise decided by the
commission.
(4) Hold each session at such time and place as it shall
determine, or as may be directed by the convening
authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges
and specifications clearly worded so as to apprise the
accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel
appointed by the convening authority or counsel of his own
choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel
present relevant evidence at the trial in support of his
defense, and cross-examine each adverse witness who
personally appears before the commission.
(4) To have the substance of the charges and
specifications, the proceedings and any documentary
evidence translated, when he is unable otherwise to
understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and
testimony; to administer oaths or affirmations to witnesses
and other persons and to question witnesses.
(2) To require the production of documents and other
evidentiary material.
(3) To delegate the Prosecutors appointed by the convening
authority the powers and duties set forth in (1) and (2)
above.
(4) To have evidence taken by a special commissioner
appointed by the commission.

23
(d) Evidence.
(1) The commission shall admit such evidence as in its
opinion shall be of assistance in proving or disproving the
charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The
commission shall apply the rules of evidence and pleading
set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in
any way the scope of the foregoing general rules, the
following evidence may be admitted:
(a) Any document, irrespective of its classification, which
appears to the commission to have been signed or issued
by any officer, department, agency or member of the
armed forces of any Government without proof of the
signature or of the issuance of the document.
(b) Any report which appears to the commission to have
been signed or issued by the International Red Cross or a
member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person
whom commission considers as possessing knowledge of
the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn
statements, appearing to the commission to contain
information relating to the charge.
(e) A copy of any document or other secondary evidence of
the contents, if the original is not immediately available.
(2) The commission shall take judicial notice of facts of
common knowledge, official government documents of any
nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the
defense to make a preliminary offer of proof whereupon
the commission may rule in advance on the admissibility of
such evidence.
(4) The official position of the accused shall not absolve
him from responsibility nor be considered in mitigation of
punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not
constitute a defense, but may be considered in mitigation
of punishment if the commission determines that justice so
requires.
(5) All purposed confessions or statements of the accused
shall bee admissible in evidence without any showing that

they were voluntarily made. If it is shown that such

confession or statement was procured by mean which the
commission believe to have been of such a character that
may have caused the accused to make a false statement
the commission may strike out or disregard any such
portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be
conducted substantially as follows unless modified by the
commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its
substance stated in open court.
(2) The presiding member shall ask each accused whether
he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4)
The presiding member may at this or any other time
require the prosecutor to state what evidence he proposes
to submit to the commission and the commission
thereupon may rule upon the admissibility of such
evidence.
(4) The witnesses and other evidence for the prosecution
shall be heard or presented. At the close of the case for the
prosecution, the commission may, on motion of the
defense for a finding of not guilty, consider and rule
whether he evidence before the commission may defer
action on any such motion and permit or require the
prosecution to reopen its case and produce any further
available evidence.
(5) The defense may make an opening statement prior to
presenting its case. The presiding member may, at this any
other time require the defense to state what evidence it
proposes to submit to the commission where upon the
commission may rule upon the admissibility of such
evidence.
(6) The witnesses and other evidence for the defense shall
be heard or presented. Thereafter, the prosecution and
defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall
address the commission.
(8) The commission thereafter shall consider the case in
closed session and unless otherwise directed by the
convening authority, announce in open court its judgment
and sentence if any. The commission may state the reason
on which judgment is based.

24
( f ) Record of Proceedings. Each commission shall make
a separate record of its proceeding in the trial of each case
brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and
submitted to the defense counsel. The commission shall be
responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor, shall
be delivered to the convening authority as soon as possible
after the trial.
(g) Sentence. The commission may sentence an
accused, upon conviction to death by hanging or shooting,
imprisonment for life or for any less term, fine or such
other punishment as the commission shall determine to be
proper.
(h) Approval of Sentence. No. sentence of a military
commission shall be carried into effect until approved by
the chief off Staff: Provided, That no sentence of death or
life imprisonment shall be carried into execution until
confirmed by the President of the Philippines. For the
purpose of his review the Chief of Staff shall create a Board
of Review to be composed of not more than three officers
none of whom shall be on duty with or assigned to the
Judge Advocate General's Office. The Chief of Staff shall
have authority to approve, mitigate remit in whole or in
part, commute, suspend, reduce or otherwise alter the
sentence imposed, or (without prejudice to the accused)
remand the case for rehearing before a new military
commission; but he shall not have authority to increase the
severity of the sentence. Except as herein otherwise
provided the judgment and sentence of a commission shall
final and not subject to review by any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall
adopt rules and forms to govern its procedure, not
inconsistent with the provision of this Order, or such rules
and forms as may be prescribed by the convening
authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand
pesos is hereby set aside out of the appropriations for the
Army of the Philippines for use by the National War Crimes
Office in the accomplishment of its mission as hereinabove
set forth, and shall be expended in accordance with the
recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures,

installations, messing, and billeting equipment and other

property herefore used by then Legal Section, Manila
Branch, of the General Headquarters, Supreme
Commander for the Allied Power, which will be turned over
by the United States Army to the Philippines Government
through the Foreign Liquidation Commission and the
Surplus Property Commission are hereby specification
reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby
repealed.
Done in the City of Manila, this 29th day of July in the year
of Our Lord, nineteen hundred and forty-seven, and of the
Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure,
without the benefit of congressional enactment.
The first question that is trust at our face spearheading a group of
other no less important question, is whether or not the President of
the Philippines may exercise the legislative power expressly vested
in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the
Philippines which shall consist of a Senate and House of
Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law
prohibiting the exercise of legislative power by agencies other than
Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative
power is to be exercised exclusively by Congress, subject only to
the veto power of the President of the President of the Philippines,
to the specific provision which allow the president of the
Philippines to suspend the privileges of the writ of habeas corpus
and to place any part of the Philippines under martial law, and to
the rule-making power expressly vested by the Constitution in the
Supreme Court.
There cannot be any question that the member of the
Constitutional Convention were believers in the tripartite system of
government as originally enunciated by Aristotle, further

25
elaborated by Montequieu and accepted and practiced by modern
democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated
the three power of government legislative, executive, judicial
to distinct and separate department of government.
Because the power vested by our Constitution to the several
department of the government are in the nature of grants, not
recognition of pre-existing power, no department of government
may exercise any power or authority not expressly granted by the
Constitution or by law by virtue express authority of the
Constitution.
Executive Order No. 68 establishes a National War Crimes Office
and the power to establish government office is essentially
legislative.
The order provides that person accused as war criminals shall be
tried by military commissions. Whether such a provision is
substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge
with war crimes. The power to define and allocate jurisdiction for
the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This
provision on procedural subject constitutes a usurpation of the
rule-making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of
procedure. If the President of the Philippines cannot exercise the
rule -making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military
commission.
It appropriates the sum of P7000,000 for the expenses of the
National War Crimes office established by the said Executive Order
No. 68. This constitutes another usurpation of legislative power as
the power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because,
though it the President of the Philippines usurped power expressly
vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under
which the President issued Executive Order No. 68, respondent
could not give any definite answer. They attempted, however, to
suggest that the President of the Philippines issued Executive
Order No. 68 under the emergency power granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act
No. 620, and Commonwealth Act No. 671, both of which are
transcribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND
AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATION TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO INSURE
THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world
has created a national emergency which makes it
necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of
the Philippines and to insure the tranquility of its
inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and
sufficient food supply, and by providing means for the
speedy evacuation of the civilian population the
establishment of an air protective service and the
organization of volunteer guard units, and to adopt such
other measures as he may deem necessary for the interest
of the public. To carry out this policy the President is
authorized to promulgate rules and regulations which shall
have the force and effect off law until the date of
adjournment of the next regulation which shall have the
force and effect of law until the date of adjournment of the
next regular session of the First Congress of the Philippines,
unless sooner amended or repealed by the Congress of
Philippines. Such rules and regulation may embrace the
following objects: (1) to suppress espionage and other
subversive activities; (2) to require all able-bodied citizens
(a) when not engaged in any lawful occupation, to engage
in farming or other productive activities or (b) to perform
such services as may bee necessary in the public interest;
(3) to take over farm lands in order to prevent or shortage
of crops and hunger and destitution; (4) to take over
industrial establishment in order to insure adequate
production, controlling wages and profits therein; (5) to
prohibit lockouts and strikes whenever necessary to
prevent the unwarranted suspension of work in productive
enterprises or in the interest of national security; (6) to
regulate the normal hours of work for wage-earning and
salaried employees in industrial or business undertakings
of all kinds; (7) to insure an even distribution of labor
among the productive enterprises; (8) to commandership

26
and other means of transportation in order to maintain, as
much as possible, adequate and continued transportation
facilities; (9) to requisition and take over any public service
or enterprise for use or operation by the Government;(10)
to regulate rents and the prices of articles or commodities
of prime necessity, both imported and locally produced or
manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations,
and private control affecting the supply, distribution and
movement of foods, clothing, fuel, fertilizer, chemical,
building, material, implements, machinery, and equipment
required in agriculture and industry, with power to
requisition these commodities subject to the payment of
just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and
carrying out its objective, the President may designate any
officer, without additional compensation, or any
department, bureau, office, or instrumentality of the
National Government.
SEC. 3. Any person, firm, or corporation found guilty of the
violation of any provision of this Act or of this Act or any of
the rules or regulations promulgated by the President
under the authority of section one of this Act shall be
punished by imprisonment of not more than ten years or
by a fine of not more than ten thousand pesos, or by both.
If such violation is committed by a firm or corporation, the
manager, managing director, or person charge with the
management of the business of such firm, or corporation
shall be criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly
within the first ten days from the date of the opening of its
next regular session whatever action has been taken by
him under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President
is authorized to spend such amounts as may be necessary
from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninetyeight.
SEC. 6. If any province of this Act shall be declared by any
court of competent jurisdiction to be unconstitutional and
void, such declaration shall not invalidate the remainder of
this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL
EMERGENCY AS A RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO MEET
SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State
and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting
emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of
the Constitution, the President is hereby authorized, during
the existence of the emergency, to promulgate such rules
and regulation as he may deem necessary to carry out the
national policy declared in section 1 hereof. Accordingly, he
is, among other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions, branches,
department, offices, agencies or instrumentalities; (b) to
reorganize the Government of the Commonwealth
including the determination of the order of precedence of
the heads of the Executive Department; (c) to create new
subdivision, branches, departments, offices, agency or
instrumentalities of government and to abolish any of
those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e) to
imposed new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the
expensive of the proceeds thereof; (g) to authorize the
National, provincial, city or municipal governments to incur
in overdrafts for purposes that he may approve; (h) to
declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as
he may deem necessary to enable the Government to fulfill
its responsibilities and to maintain and enforce its
authority.
SEC. 3. The President of the Philippines report thereto all
the rules and regulation promulgated by him under the
power herein granted.

27
SEC. 4. This Act shall take effect upon its approval and the
rules and regulations. promulgated hereunder shall be in
force and effect until the Congress of the Philippines shall
otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68
was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on
September 2, 1945.
When both Acts were enacted by the Second National Assembly,
we happened to have taken direct part in their consideration and
passage, not only as one of the members of said legislative body
as chairman of the Committee on Third Reading population Known
as the "Little Senate." We are, therefore in a position to state that
said measures were enacted by the second national Assembly for
the purpose of facing the emergency of impending war and of the
Pacific War that finally broke out with the attack of Pearl Harbor on
December 7, 1941. We approved said extraordinary measures, by
which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the
Philippines, by virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress
may by law authorize the President, for a limited period
and subject to such restrictions as it may prescribe to
promulgate rules and regulations to carry out declared
national policy. (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend
the delegation beyond the emergency created by the war as to
extend it farther would be violative of the express provision of the
Constitution. We are of the opinion that there is no doubt on this
question.; but if there could still be any the same should be
resolved in favor of the presumption that the National Assembly
did not intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued
in effect even after the surrender of Japan can not be gainsaid.
Only a few months after liberation and even before the surrender
of Japan, or since the middle of 1945, the Congress started to
function normally. In the hypothesis that the contention can
prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the
Philippines with the proclamation of our Independence, two district,
separate and independence legislative organs, Congress and the
President of the Philippines would have been and would continue

enacting laws, the former to enact laws of every nature including

those of emergency character, and the latter to enact laws, in the
form of executive orders, under the so-called emergency powers.
The situation would be pregnant with dangers to peace and order
to the rights and liberties of the people and to Philippines
democracy.
Should there be any disagreement between Congress and the
President of the Philippines, a possibility that no one can dispute
the President of the Philippines may take advantage of he long
recess of Congress (two-thirds of every year ) to repeal and
overrule legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to the letter
and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution
because it violates the fundamental guarantees of the due process
and equal protection of the law. It is especially so, because it
permit the admission of many kinds evidence by which no innocent
person can afford to get acquittal and by which it is impossible to
determine whether an accused is guilty or not beyond all
reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a
reproduction of the regulation governing the trial of twelve
criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the
purpose of trying among other, General Yamashita and Homma.
What we said in our concurring and dissenting opinion to the
decision promulgated on December 19, 1945, in the Yamashita
case, L-129, and in our concurring and dissenting opinion to the
resolution of January 23, 1946 in disposing the Homma case, L244, are perfectly applicable to the offensive rules of evidence in
Executive Order No. 68. Said rules of evidence are repugnant to
conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the
Yamashita and Homma cases, we vote to declare Executive Order
No. 68 null and void and to grant petition.

28
EN BANC
GEN. AVELINO I. RAZON, JR., Chief, Philippine National
Police (PNP); Police Chief Superintendent RAUL CASTAEDA,
Chief, Criminal Investigation and Detection Group (CIDG);
Police Senior Superintendent LEONARDO A. ESPINA, Chief,
Police Anti-Crime and Emergency Response (PACER); and
GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP,
Petitioners,
- versus MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE
P. ARCILLA, JR., Attorney-in-Fact,
Respondent.
December 3, 2009
DECISION
BRION, J.:
We review in this petition for review on certiorari[1] the
decision dated March 7, 2008 of the Court of Appeals (CA) in C.AG.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced
disappearance of Engineer Morced N. Tagitis (Tagitis) and granted
the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:
WHEREFORE,
premises
considered,
petition
is
hereby GRANTED. The
Court
hereby FINDS that
this
is
an enforced
disappearance within the meaning of the United
Nations instruments, as used in the Amparo
Rules. The privileges of the writ of amparoare
hereby extended to Engr. Morced Tagitis.
Consequently:
(1)
respondent GEN.
EDGARDO
M.
DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who
should order COL. JOSE VOLPANE PANTE, CIDG-9
Chief, Zamboanga City, to aid him; (2)
respondent GEN. AVELINO I. RAZON, Chief, PNP,
who should order his men, namely: (a)
respondent GEN.
JOEL
GOLTIAO,
Regional
Director of ARMM PNP, (b)COL. AHIRON AJIRIM,
both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO

A.
ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superiorare
hereby DIRECTED to
exert extraordinary
diligence and efforts, not only to protect the life,
liberty and security of Engr. Morced Tagitis, but also
to extend the privileges of the writ of amparo to
Engr. Morced Tagitis and his family, and to submit a
monthly report of their actions to this Court, as a
way of PERIODIC REVIEW to enable this Court to
monitor the action of respondents.
This amparo case is hereby DISMISSED as
to respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief AntiTerror Task Force Comet, Zamboanga City, both
being with the military, which is a separate and
distinct organization from the police and the CIDG,
in terms of operations, chain of command and
budget.
This Decision reflects the nature of the Writ of Amparo a protective
remedy against violations or threats of violation against the rights
to life, liberty and security. [3] It embodies, as a remedy, the courts
directive to police agencies to undertake specified courses of
action to address the disappearance of an individual, in this case,
Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint
criminal
culpability
for
the
disappearance;
rather,
it
determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to
the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge
relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the

29
enforced disappearance. In all these cases, the issuance of the Writ
of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to
stress that the unique situations that call for the issuance of the
writ, as well as the considerations and measures necessary to
address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and
proceedings. In
this
sense,
the
Rule
on
the
Writ
of Amparo[4] (Amparo
Rule)
issued
by
this
Court
is
unique. The Amparo Rule should be read, too, as a work in
progress, as its directions and finer points remain to evolve
through time and jurisprudence and through the substantive laws
that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the
case, are summarized below.
The established facts show that Tagitis, a consultant for the World
Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last seen in
Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following
day to Zamboanga. When Kunnong returned from this errand,
Tagitis was no longer around.[5] The receptionist related that Tagitis
went out to buy food at around 12:30 in the afternoon and even
left his room key with the desk.[6] Kunnong looked for Tagitis and
even sent a text message to the latters Manila-based secretary
who did not know of Tagitis whereabouts and activities either; she
advised Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir
N. Matli, a UP professor of Muslim studies and Tagitis fellow student
counselor at the IDB, reported Tagitis disappearance to the Jolo
Police Station.[8] On November 7, 2007, Kunnong executed a sworn
affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent
filed a Petition for the Writ of Amparo (petition) with the CA through
her Attorney-in-Fact, Atty. Felipe P. Arcilla. [10] The petition was
directed against Lt. Gen. Alexander Yano, Commanding General,
Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National
Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen.
Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to
as petitioners]. After reciting Tagitis personal circumstances and
the facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went
out of the pension house to take his early lunch but
while out on the street, a couple of burly men
believed to be police intelligence operatives,
forcibly took him and boarded the latter on a
motor vehicle then sped awaywithout the
knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day,
Kunnong returned to the pension house, and was
surprised to find out that subject Engr. Tagitis
cannot [sic] be contacted by phone and was not
also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the
pension house who [sic] assisted him to open the
room of Engr. Tagitis, where they discovered that
the personal belongings of Engr. Tagitis, including
cell phones, documents and other personal
belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and
reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions
in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was
immediately given a ready answer that Engr.
Tagitis could have been abducted by the Abu

30
Sayyaf group and other groups known to be
fighting against the government;
12. Being scared with [sic] these suggestions and
insinuations of the police officers, Kunnong
reported the matter to the [respondent, wife of
Engr. Tagitis] by phone and other responsible
officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the
office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah,
Saudi Arabia;
13. [Respondent], on the other hand, approached some of
her co-employees with the Land Bank in Digos
branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the
military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce
any positive results except the information from
persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the
uniformed men;
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the
custody of police intelligence operatives,
specifically with the CIDG, PNP Zamboanga
City, being held against his will in an earnest
attempt of the police to involve and connect
Engr. Tagitis with the different terrorist
groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police
Station in the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find
her husband, but [respondents] request and
pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told
of an intriguing tale by the police that her husband,

subject of the petition, was not missing but was

with another woman having good time somewhere,
which is a clear indication of the [petitioners]
refusal to help and provide police assistance in
locating her missing husband;
19. The continued failure and refusal of the [petitioners] to
release and/or turn-over subject Engr. Tagitis to his
family or even to provide truthful information to
[the respondent] of the subjects whereabouts,
and/or allow [the respondent] to visit her husband
Engr. Morced Tagitis, caused so much sleepless
nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of
the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to
the different Police Headquarters including [those]
in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for
her husband, which entailed expenses for her trips
to these places thereby resorting her to borrowings
and beggings [sic] for financial help from friends
and relatives only to try complying [sic] to the
different suggestions of these police officers,
despite of which, her efforts produced no positive
results up to the present time;
21. In fact at times, some police officers, who [sympathized
with] the
sufferings
undergone
by
the
[respondent], informed her that they are not the
proper persons that she should approach, but
assured her not to worry because her husband is
[sic] in good hands;
22. The

unexplained uncooperative behavior of the

[petitioners] to the [respondents] request for help
and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in
locating the whereabouts of Engr. Tagitis who had
been declared missing since October 30, 2007
which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in

31
physical possession and custody of [respondents]
husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under
the circumstances, [the respondent] has no other
plain, speedy and adequate remedy to protect and
get the release of subject Engr. Morced Tagitis from
the illegal clutches of the [petitioners], their
intelligence operatives and the like which are in
total violation of the subjects human and
constitutional rights, except the issuance of a WRIT
OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued
the Writ of Amparo, set the case for hearing on January 7, 2008,
and directed the petitioners to file their verified return within
seventy-two (72) hours from service of the writ.[11]
In their verified Return filed during the hearing of January
27, 2008, the petitioners denied any involvement in or knowledge
of Tagitis alleged abduction. They argued that the allegations of the
petition were incomplete and did not constitute a cause of action
against them; were baseless, or at best speculative; and were
merely based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached
to the Return, stated that: he did not have any personal knowledge
of, or any participation in, the alleged disappearance; that he had
been designated by President Gloria Macapagal Arroyo as the head
of a special body called TASK FORCE USIG, to address concerns
about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local
police, held case conferences, rendered legal advice in connection
to these cases; and gave the following summary: [13]
xxxx
4.
a)
On November 5, 2007, the
Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of
one Engr. Morced Tagitis. According to the said

report, the victim checked-in at ASY Pension House

on October 30, 2007 at about 6:00 in the morning
and then roamed around Jolo, Sulu with an
unidentified companion. It was only after a few
days when the said victim did not return that the
matter was reported to Jolo MPS. Afterwards,
elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts
of the said missing person, but to no avail. The said
PPO is still conducting investigation that will lead to
the immediate findings of the whereabouts of the
person.
b)
Likewise, the Regional Chief,
9RCIDU submitted a Progress Report to the
Director, CIDG. The said report stated among
others that: subject person attended an Education
Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga
City together with a Prof. Matli. On October 30,
2007, at around 5:00 oclock in the morning, Engr.
Tagitis reportedly arrived at Jolo Sulu wharf aboard
M/V Bounty Cruise, he was then billeted at ASY
Pension House. At about 6:15 oclock in the morning
of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31,
2007. That on or about 10:00 oclock in the
morning, Engr. Tagitis left the premises of ASY
Pension House as stated by the cashier of the said
pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the
pension house and waited for Engr. Tagitis, but the
latter did not return. On its part, the elements of
9RCIDU is now conducting a continuous case build
up and information gathering to locate the
whereabouts of Engr. Tagitis.
c)
That
the
Director,
CIDG
directed the conduct of the search in all divisions of
the CIDG to find Engr. Tagitis who was allegedly
abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007, but
after diligent and thorough search, records show

32
that no such person is being detained in CIDG or
any of its department or divisions.
5. On this particular case, the Philippine National
Police exhausted all possible efforts, steps and
actions available under the circumstances and
continuously search and investigate [sic] the
instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry,
as the PNP cannot stand alone without the
cooperation of the victims and witnesses to identify
the perpetrators to bring them before the bar of
justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal,
submitted as well his affidavit, also attached to the Return of the
Writ, attesting that upon receipt of the Writ of Amparo, he caused
the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of
the Resolution of the Honorable Special Fourth
Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group
[CIDG] to conduct urgent investigation on the
alleged enforced disappearance of Engineer
Morced Tagitis.
That based on record, Engr. Morced N. Tagitis
attended an Education Development Seminar on
October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six oclock in
the morning he arrived at Jolo, Sulu. He was
assisted by his student identified as Arsimin
Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He
checked in at ASY pension house located [sic]
Kakuyagan, Patikul, Sulu on October 30, 2007 with
[sic] unidentified companion. At around six oclock
in the morning of even date, Engr. Tagitis
instructed his student to purchase a fast craft
ticket for Zamboanga City. In the afternoon of the
same date, Kunnong arrived at the pension house

carrying the ticket he purchased for Engr. Tagitis,

but the latter was nowhere to be found
anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the
police. The CIDG is not involved in the
disappearance of Engr. Morced Tagitis to make out
a case of an enforced disappearance which
presupposes a direct or indirect involvement of the
government.
That herein [petitioner] searched all divisions and
departments for a person named Engr. Morced N.
Tagitis, who was allegedly abducted or illegally
detained
by
covert
CIDG-PNP
Intelligence
Operatives since October 30, 2007 and after a
diligent and thorough research records show that
no such person is being detained in CIDG or any of
its department or divisions.
That nevertheless, in order to determine the
circumstances surrounding Engr. Morced Tagitis
[sic]
alleged
enforced
disappearance,
the
undersigned
had
undertaken
immediate
investigation and will pursue investigations up to
its full completion in order to aid in the prosecution
of the person or persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER [15] Chief
PS Supt. Leonardo A. Espinas affidavit which alleged that: [16]
xxxx
That, I and our men and women in PACER
vehemently deny any participation in the alleged
abduction or illegally [sic] detention of ENGR.
MORCED N. TAGITS on October 30, 2007. As a
matter of fact, nowhere in the writ was mentioned
that the alleged abduction was perpetrated by
elements of PACER nor was there any indication
that the alleged abduction or illegal detention of
ENGR. TAGITIS was undertaken jointly by our men
and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.

33
That I was shocked when I learned that I was
implicated in the alleged disappearance of ENGR.
MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime
and Emergency Response (PACER), a special task
force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until
now continue to be one of the menace of our
society is a respondent in kidnapping or illegal
detention case. Simply put, our task is to go after
kidnappers and charge them in court and to abduct
or illegally detain or kidnap anyone is anathema to
our mission.
That right after I learned of the receipt of the WRIT
OF AMPARO, I directed the Chief of PACER
Mindanao Oriental (PACER-MOR) to conduct proactive measures to investigate, locate/search the
subject, identify and apprehend the persons
responsible, to recover and preserve evidence
related to the disappearance of ENGR. MORCED
TAGITIS, which may aid in the prosecution of the
person or persons responsible, to identify witnesses
and obtain statements from them concerning the
disappearance and to determine the cause,
manner, location and time of disappearance as well
as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR,
Police Superintendent JOSE ARNALDO BRIONES JR.,
to
submit a
written
report
regarding
the
disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of
PACER-MOR sent through fax his written report.
That the investigation and measures being
undertaken to locate/search the subject in
coordination
with
Police
Regional
Office,
Autonomous Region of Muslim Mindanao (PROARMM) and Jolo Police Provincial Office (PPO) and
other AFP and PNP units/agencies in the area are
ongoing with the instruction not to leave any stone

unturned so to speak in the investigation until the

perpetrators in the instant case are brought to the
bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE
in dealing with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R.
Goltiao (Gen. Goltiao), also submitted his affidavit detailing the
actions that he had taken upon receipt of the report on Tagitis
disappearance, viz:[17]
xxxx
3) For the record:
1.
I am the Regional Director of
Police Regional Office ARMM now and during the
time of the incident;
xxxx
4. It is my duty to look into and take
appropriate measures on any cases of reported
enforced disappearances and when they are being
alluded to my office;
5. On November 5, 2007, the Provincial Director of
Sulu Police Provincial Office reported to me through
Radio Message Cite No. SPNP3-1105-07-2007 that
on November 4, 2007 at around 3:30 p.m., a
certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of
the Chief of Police, Jolo Police Station, and reported
the disappearance of Engr. Morced Tagitis,
scholarship coordinator of Islamic Development
Bank, Manila;
6. There was no report that Engr. Tagibis was last
seen in the company of or taken by any member of
the Philippine National Police but rather he just
disappeared from ASY Pension House situated at
Kakuyagan Village, Village, Patikul, Sulu, on

34
October 30, 2007, without any trace of forcible
abduction or arrest;
7. The last known instance of communication with
him was when Arsimin Kunnong, a student scholar,
was requested by him to purchase a vessel ticket
at the Office of Weezam Express, however, when
the student returned back to ASY Pension House,
he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter
regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr.
Tagitis had left the premises on October 30, 2007
around 1 oclock p.m. and never returned back to
his room;
8. Immediately after learning the incident, I called
and directed the Provincial Director of Sulu Police
Provincial Office and other units through phone call
and text messages to conduct investigation [sic] to
determine the whereabouts of the aggrieved party
and the person or persons responsible for the
threat, act or omission, to recover and preserve
evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements
from them concerning his disappearance, to
determine the cause and manner of his
disappearance, to identify and apprehend the
person or persons involved in the disappearance so
that they shall be brought before a competent
court;
9. Thereafter, through my Chief of the Regional
Investigation and Detection Management Division, I
have caused the following directives:
a)

Radio Message Cite No. RIDMD-1122-07358 dated November 22, 2007 directing PD
Sulu PPO to conduct joint investigation with
CIDG and CIDU ARMM on the matter;

b)

Radio Message Cite No. RIDMD-1128-07361 dated November 28, 2007 directing PD

Sulu PPO to expedite compliance to my

previous directive;
c)

Memorandum dated December 14, 2007

addressed to PD Sulu PPO reiterating our
series of directives for investigation and
directing him to undertake exhaustive
coordination efforts with the owner of ASY
Pension House and student scholars of IDB
in order to secure corroborative statements
regarding
the
disappearance
and
whereabouts of said personality;

d)

Memorandum dated December 24, 2007

addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and
Arsimin
Kunnong
and/or
whenever
necessary, for them to voluntarily submit
for polygraph examination with the NBI so
as to expunge all clouds of doubt that they
may somehow have knowledge or idea to
his disappearance;

e)

Memorandum dated December 27, 2007

addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police
Regional Office 9, Zamboanga City,
requesting assistance to investigate the
cause and unknown disappearance of Engr.
Tagitis considering that it is within their
area of operational jurisdiction;

f)

Memorandum from Chief, Intelligence

Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring
them to submit complete investigation
report regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO

has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the
whereabouts of Engr. Tagitis and the circumstances

35
related to his disappearance and submitted the
following:
a)

Progress Report dated November 6, 2007

through Radio Message Cite No. SPNP3-110610-2007;

b)

Radio Message Cite No. SPIDMS-1205-47-07

informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;

c)

Investigation Report dated December 31,

2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;

11. This incident was properly reported to the PNP

Higher Headquarters as shown in the following:
a)

Memorandum dated November 6, 2007

addressed to the Chief, PNP informing him of
the facts of the disappearance and the action
being taken by our office;

b)

Memorandum dated November 6, 2007

addressed to the Director, Directorate for
Investigation and Detection Management, NHQ
PNP;

c)

Memorandum dated December

addressed to the Director, DIDM;

30,

[Based] on reliable information from the Office of

Muslim Affairs in Manila, Tagitis has reportedly
taken and carried away more or less Five Million
Pesos (P5,000,000.00) deposited and entrusted to
his [personal] bank accounts by the Central Office
of IDB, Jeddah, Kingdom of Saudi Arabia, which
[was] intended for the IDB Scholarship Fund.

2007

4) In spite of our exhaustive efforts, the

whereabouts of Engr. Tagitis cannot be determined
but our office is continuously intensifying the
conduct of information gathering, monitoring and
coordination for the immediate solution of the
case.
Since the disappearance of Tagistis was practically admitted and
taking note of favorable actions so far taken on the disappearance,
the CA directed Gen. Goltiao as the officer in command of the area
of disappearance to form TASK FORCE TAGITIS.[18]
Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron

Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS. [19] The CA
subsequently set three hearings to monitor whether TASK FORCE
TAGITIS was exerting extraordinary efforts in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would
be to mobilize the CIDG, Zamboanga City; (2) the second hearing
would be to mobilize intelligence with Abu Sayyaf and ARMM; and
(3) the third hearing would be to mobilize the Chief of Police of Jolo,
Sulu and the Chief of Police of Zamboanga City and other police
operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted
to the CA an intelligence report from PSL Usman S. Pingay, the
Chief of Police of the Jolo Police Station, stating a possible motive
for Tagitis disappearance.[22] The intelligence report was apparently
based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the
University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the
Provincial Governor of Sulu that:[23]

In the same hearing, PS Supt. Ajirim testified that since the CIDG
was alleged to be responsible, he personally went to the CIDG
office
in
Zamboanga
City
to
conduct
an
ocular
inspection/investigation, particularly of their detention cells. [24] PS
Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently
denied any knowledge or complicity in any abduction. [25] He further
testified that prior to the hearing, he had already mobilized and
given specific instructions to their supporting units to perform their
respective tasks; that they even talked to, but failed to get any
lead from the respondent in Jolo.[26] In his submitted investigation
report dated January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and
observation at the Headquarters 9 RCIDU and the

36
documents at hand, it is my own initial conclusion
that the 9RCIDU and other PNP units in the area
had no participation neither [sic] something to do
with [sic] mysterious disappearance of Engr.
Morced Tagitis last October 30, 2007. Since doubt
has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB
that was reportedly deposited in the personal
account of Engr. Tagitis by the IDB central office in
Jeddah, Kingdom of Saudi Arabia. Secondly, it could
might [sic] be done by resentment or sour grape
among students who are applying for the scholar
[sic] and were denied which was allegedly
conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may
and [sic] presumed that the motive behind the
disappearance of the subject might be due to the
funds he maliciously spent for his personal interest
and wanted to elude responsibilities from the
institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli
be true or there might be a professional jealousy
among them.
xxxx
It is recommended that the Writ of Amparo filed
against the respondents be dropped and dismissed
considering on [sic] the police and military actions
in the area particularly the CIDG are exerting their
efforts and religiously doing their tasked [sic] in the
conduct of its intelligence monitoring and
investigation for the early resolution of this instant
case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area,
are continuously and religiously conducting our
investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK
FORCE TAGITIS did not appear to be exerting extraordinary efforts
in resolving Tagitis disappearance on the following grounds:[28]

(1)
This Court FOUND that it was
only as late as January 28, 2008, after the hearing,
that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM
had requested for clear photographs when it
should have been standard operating procedure in
kidnappings or disappearances that the first
agenda was for the police to secure clear
pictures of the missing person, Engr. Morced
Tagitis, for dissemination to all parts of the country
and to neighboring countries. It had been three (3)
months since GEN. JOEL GOLTIAO admitted having
been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by
alleged bad elements of the CIDG. It had been
more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It
had been three (3) weeks when battle formation
was ordered through Task Force Tagitis, on January
17, 2008. It was only on January 28, 2008 when the
Task Force Tagitis requested for clear and recent
photographs of the missing person, Engr. Morced
Tagitis, despite the Task Force Tagitis claim that
they already had an all points bulletin, since
November 5, 2007, on the missing person, Engr.
Morced Tagitis. How could the police look for
someone who disappeared if no clear photograph
had been disseminated?
(2)
Furthermore, Task
Force
Tagitis COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom
Ajirims replacement in the latters official
designated post. Yet, P/Supt KASIMs subpoena was
returned to this Court unserved.Since this Court
was made to understand that it was P/Supt KASIM
who was the petitioners unofficial source of the
military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG
(par. 15 of the Petition), the close contact between
P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of
Col. KASIM in response to this courts subpoena and
COL. KASIM could have confirmed the military

37
intelligence information that bad elements of the
CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified
on direct examination that she went to Jolo and Zamboanga in her
efforts to locate her husband. She said that a friend from
Zamboanga holding a high position in the military (whom she did
not then identify) gave her information that allowed her to specify
her allegations, particularly paragraph 15 of the petition. [29] This
friend also told her that her husband [was] in good hands. [30] The
respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager
Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis. [31] The respondent recounted
that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her
and her friends (who were then with her) a highly confidential
report that contained the alleged activities of Engineer Tagitis and
informed her that her husband was abducted because he is under
custodial investigation for being a liaison for J.I. or Jemaah
Islamiah.[32]
On January 17, 2008, the respondent on cross-examination
testified that she is Tagitis second wife, and they have been
married for thirteen years; Tagitis was divorced from his first wife.
[33]
She last communicated with her husband on October 29, 2007
at around 7:31 p.m. through text messaging; Tagitis was then on
his way to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands
disappearance on October 30, 2007 when her stepdaughter,
Zaynah Tagitis (Zaynah), informed her that she had not heard from
her father since the time they arranged to meet in Manila on
October 31, 2007.[35] The respondent explained that it took her a
few days (or on November 5, 2007) to personally ask Kunnong to
report her husbands disappearance to the Jolo Police Station, since
she had the impression that her husband could not communicate
with her because his cellular phones battery did not have enough
power, and that he would call her when he had fully-charged his
cellular phones battery.[36]

The respondent also identified the high-ranking military friend, who

gave her the information found in paragraph 15 of her petition, as
Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp
Karingal, Zamboanga through her boss.[37] She also testified that
she was with three other people, namely, Mrs. Marydel Martin
Talbin and her two friends from Mati City, Davao Oriental, when
Col. Kasim read to them the contents of the highly confidential
report at Camp Katitipan, Davao City. The respondent further
narrated that the report indicated that her husband met with
people belonging to a terrorist group and that he was under
custodial investigation. She then told Col. Kasim that her husband
was a diabetic taking maintenance medication, and asked that the
Colonel relay to the persons holding him the need to give him his
medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two
narrative reports,[39] signed by the respondent, detailing her efforts
to locate her husband which led to her meetings with Col. Ancanan
of the Philippine Army and Col. Kasim of the PNP. In her narrative
report concerning her meeting with Col. Ancanan, the respondent
recounted, viz:[40]
On November 11, 2007, we went to Zamboanga
City with my friend Mrs. Marydel Talbin. Our flight
from Davao City is 9:00 oclock in the morning; we
arrived at Zamboanga Airport at around 10:00
oclock. We [were] fetched by the two staffs of Col.
Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation
with Col. Ancanan. He interviewed me and got
information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information,
he revealed to us the contents of text messages
they got from the cellular phone of the subject
Engr. Tagitis. One of the very important text
messages of Engr. Tagitis sent to his daughter
Zaynah Tagitis was that she was not allowed to
answer any telephone calls in his condominium
unit.
While we were there he did not tell us any
information
of
the
whereabouts
of
Engr.
Tagitis. After the said meeting with Col. Ancanan,
he treated us as guests to the city. His two staffs

38
accompanied us to the mall to purchase our plane
ticket going back to Davao City on November 12,
2007.
When we arrived in Davao City on November 12,
2007 at 9:00 in the morning, Col. Ancanan and I
were discussing some points through phone
calls. He assured me that my husband is alive and
hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I
did not believe his given statements of the
whereabouts of my husband, because I contacted
some of my friends who have access to the groups
of MILF, MNLF and ASG. I called up Col. Ancanan
several times begging to tell me the exact location
of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I
called him up again because the PNP, Jolo did not
give me any information of the whereabouts of my
husband. Col. Ancanan told me that Sana ngayon
alam mo na kung saan ang kinalalagyan ng asawa
mo. When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was
hesitant to pay him a visit for the reason that the
Chief of Police of Jolo told me not to contact any
AFP officials and he promised me that he can solve
the case of my husband (Engr. Tagitis) within nine
days.
I appreciate the effort of Col. Ancanan on trying to
solve the case of my husband Engr. Morced Tagitis,
yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as
follows:[41]
On November 7, 2007, I went to Land Bank of the
Philippines, Bajada Branch, Davao City to meet Mr.
Rudy Salvador. I told him that my husband,
Engineer Morced Tagitis was presumed to be
abducted in Jolo, Sulu on October 30, 2007. I asked
him a favor to contact his connections in the
military in Jolo, Sulu where the abduction of Engr.
Tagitis took place. Mr. Salvador immediately called
up Camp Katitipan located in Davao City looking for

high-ranking official who can help me gather

reliable information behind the abduction of
subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend,
Anna Mendoza, Executive Secretary, accompanied
me to Camp Katitipan to meet Col. Kasim. Mr.
Salvador introduced me to Col. Kasim and we had a
short conversation. And he assured me that hell do
the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up
informing me up informing me that I am to go to
Camp Katitipan to meet Col. Kasim for he has an
urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp
Katitipan with my three friends. That was the time
that Col. Kasim read to us the confidential report
that Engr. Tagitis was allegedly connected [with]
different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a
certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of
medicines for the injured terrorists as a
supplier. These are the two information that I can
still remember. It was written in a long bond paper
with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my
Name! Because this is a raw report. He assured me
that my husband is alive and he is in the custody of
the military for custodial investigation. I told him to
please take care of my husband because he has
aliments and he recently took insulin for he is a
diabetic patient.
In my petition for writ of amparo, I emphasized the
information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel
Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding
her efforts to locate her husband, in relation particularly with the
information she received from Col. Kasim. Mrs. Talbin testified that

39
she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col.
Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col.
Ancanan, who told them that there was a report and that he
showed them a series of text messages from Tagitis cellular phone,
which showed that Tagitis and his daughter would meet in Manila
on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she
went with the respondent together with two other companions,
namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to
talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew
the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was
with the PNP or with the Armed Forces of the Philippines (AFP). She
further recounted that based on the report Col. Kasim read in their
presence, Tagitis was under custodial investigation because he was
being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was abducted
when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told
them that he could not give a copy of the report because it was a
raw report.[45] She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned
Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that
despite what his January 4, 2008 affidavit indicated, [51] he never
told PS Supt. Pingay, or made any accusation, that Tagitis took
away money entrusted to him. [52]Prof. Matli confirmed, however,
that that he had received an e-mail report [53] from Nuraya Lackian
of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.[54]
On cross-examination by the respondents counsel, Prof. Matli
testified that his January 4, 2008 affidavit was already prepared
when PS Supt. Pingay asked him to sign it. [55] Prof Matli clarified
that although he read the affidavit before signing it, he was not so
much aware of [its] contents.[56]
On February 11, 2008, the petitioners presented Col. Kasim to
rebut material portions of the respondents testimony, particularly
the allegation that he had stated that Tagitis was in the custody of

either the military or the PNP. [57] Col. Kasim categorically denied the
statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines
as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the
respondent that your husband is in good hands and is
probably taken cared of by his armed abductors; and (3) that
Tagitis was under custodial investigation by the military, the PNP or
the CIDG Zamboanga City.[58] Col. Kasim emphasized that the
informal letter he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. [59] He also
stressed that the information he provided to the respondent was
merely a raw report sourced from barangay intelligence that still
needed confirmation and follow-up as to its veracity. [60]
On cross-examination, Col. Kasim testified that the information he
gave the respondent was given to him by his informant, who was a
civilian asset, through a letter which he considered as unofficial.
[61]
Col. Kasim stressed that the letter was only meant for his
consumption and not for reading by others. [62] He testified further
that he destroyed the letter right after he read it to the respondent
and her companions because it was not important to him and also
because the information it contained had no importance in relation
with the abduction of Tagitis. [63] He explained that he did not keep
the letter because it did not contain any information regarding the
whereabouts of Tagitis and the person(s) responsible for his
abduction.[64]
In the same hearing on February 11, 2008, the petitioners also
presented Police Senior Superintendent Jose Volpane Pante (Col.
Pante), Chief of the CIDG-9, to disprove the respondents allegation
that Tagitis was in the custody of CIDG-Zamboanga City. [65]Col.
Pante clarified that the CIDG was the investigative arm of the PNP,
and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered
as heinous crimes.[66] Col. Pante further testified that the allegation
that 9 RCIDU personnel were involved in the disappearance of
Tagitis was baseless, since they did not conduct any operation in
Jolo, Sulu before or after Tagitis reported disappearance. [67] Col.
Pante added that the four (4) personnel assigned to the Sulu CIDT
had no capability to conduct any operation, since they were only
assigned to investigate matters and to monitor the terrorism
situation.[68] He denied that his office conducted any surveillance
on Tagitis prior to the latters disappearance. [69] Col. Pante further
testified that his investigation of Tagitis disappearance was

40
unsuccessful; the investigation was still facing a blank wall on the
whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision [71] confirming that the
disappearance of Tagitis was an enforced disappearance under the
United Nations (UN) Declaration on the Protection of All Persons
from Enforced Disappearances.[72] The CA ruled that when military
intelligence pinpointed the investigative arm of the PNP (CIDG) to
be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was
involved was based on the respondents testimony, corroborated by
her companion, Mrs. Talbin. The CA noted that the information that
the CIDG, as the police intelligence arm, was involved in Tagitis
abduction came from no less than the military an independent
agency of government. The CA thus greatly relied on the raw
report from Col. Kasims asset, pointing to the CIDGs involvement in
Tagitis abduction. The CA held that raw reports from an asset
carried great weight in the intelligence world. It also labeled as
suspect Col. Kasims subsequent and belated retraction of his
statement that the military, the police, or the CIDG was involved in
the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a
bedlam of speculation police theories painting the disappearance
as intentional on the part of Tagitis. He had no previous brushes
with the law or any record of overstepping the bounds of any trust
regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she
did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was trying to escape from the clutches of
his second wife, on the basis of the respondents testimony that
Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was no issue at all when the latter divorced his
first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis disappearance, since the
respondent, the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for payment of
ransom the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege
of the writ to Tagitis and his family, and directed the CIDG Chief,
Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, TASK FORCE

TAGITIS heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER
Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence
and efforts to protect the life, liberty and security of Tagitis, with
the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the
then respondents from the military, Lt. Gen Alexander Yano and
Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not
the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA
decision, but the CA denied the motion in its Resolution of April 9,
2008.[73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision,
the petitioners mainly dispute the sufficiency in form and
substance of the Amparo petition filed before the CA; the
sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty
and security of Tagitis had been violated; the sufficiency of
evidence supporting the conclusion that Tagitis was abducted; the
conclusion that the CIDG Zamboanga was responsible for the
abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by
substantial evidence.[74]
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the
petition
violated
Section
5(c),
(d),
and
(e)
of
the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:
1)

allege any act or omission the petitioners committed in

violation of Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was
abducted,
the
persons
responsible
for
his
disappearance,
and
the
respondents
source
of information;

41
3)
4)
5)
6)
7)

allege that the abduction was committed at the

petitioners instructions or with their consent;
implead the members of CIDG regional office in
Zamboanga alleged to have custody over her husband;
attach the affidavits of witnesses to support her
accusations;
allege any action or inaction attributable to the
petitioners in the performance of their duties in the
investigation of Tagitis disappearance; and
specify what legally available efforts she took to
determine the fate or whereabouts of her husband.

A petition for the Writ of Amparo shall be signed and

verified and shall allege, among others (in terms of the portions
the petitioners cite):[75]
(c) The right to life, liberty and security of
the aggrieved party violated or threatened
with violation by an unlawful act or
omission of the respondent, and how such
threat or violation is committed with the
attendant
circumstances
detailed
in
supporting affidavits;
(d) The investigation conducted, if any,
specifying
the
names,
personal
circumstances,
and addresses
of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the
petitioner
to
determine
the
fate
or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
The framers of the Amparo Rule never intended Section
5(c) to be complete in every detail in stating the threatened or
actual violation of a victims rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details.
[76]
In an Amparo petition, however, this requirement must be read
in light of thenature and purpose of the proceeding, which

addresses a situation of uncertainty; the petitioner may not be able

to describe with certainty how the victim exactly disappeared, or
who actually acted to kidnap, abduct or arrest him or her, or where
the victim is detained, because these information may purposely
be hidden or covered up by those who caused the
disappearance. In this type of situation, to require the level of
specificity, detail and precision that the petitioners apparently
want to read into the Amparo Rule is to make this Rule a token
gesture of judicial concern for violations of the constitutional rights
to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the
details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims
rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather
than in terms of its isolated component parts, to determine if the
required elements namely, of the disappearance, the State or
private action, and the actual or threatened violations of the rights
to life, liberty or security are present.
In the present case, the petition amply recites in its
paragraphs 4 to 11 the circumstances under which Tagitis suddenly
dropped out of sight after engaging in normal activities, and
thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to
paragraphs
15
and
16, that
according
to
reliable
information, police operatives were the perpetrators of the
abduction. It also clearly alleged how Tagitis rights to life, liberty
and security were violated when he was forcibly taken and boarded
on a motor vehicle by a couple of burly men believed to be police
intelligence operatives, and then taken into custody by the
respondents police intelligence operatives since October 30, 2007,
specifically by the CIDG, PNP Zamboanga City, x x x held against
his will in an earnest attempt of the police to involve and connect
[him] with different terrorist groups.[77]
These allegations, in our view, properly pleaded ultimate
facts within the pleaders knowledge about Tagitis disappearance,
the participation by agents of the State in this disappearance, the
failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation

42
of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this
defect is its lack of supporting affidavit, as required by Section 5(c)
of the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of the
petition, theAmparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used
as the affiants direct testimony.[78] This requirement, however,
should not be read as an absolute one that necessarily leads to the
dismissal of the petition if not strictly followed. Where, as in this
case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing
the facts relied upon, the strict need for the sworn statement that
an affidavit represents is essentially fulfilled. We note that the
failure to attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified in the
CA hearings held on January 7 and 17 and February 18, 2008 to
swear to and flesh out the allegations of the petition. Thus, even on
this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior
investigation of an alleged disappearance must have been made,
specifying the manner and results of the investigation. Effectively,
this requirement seeks to establish at the earliest opportunity the
level of diligence the public authorities undertook in relation with
the reported disappearance.[79]
We reject the petitioners argument that the respondents
petition did not comply with the Section 5(d) requirements of
theAmparo Rule, as the petition specifies in its paragraph 11 that
Kunnong and his companions immediately reported Tagitis
disappearance to the police authorities in Jolo, Sulu as soon as
they were relatively certain that he indeed had disappeared. The
police, however, gave them the ready answer that Tagitis could
have been abducted by the Abu Sayyaf group or other antigovernment groups. The respondent also alleged in paragraphs 17
and 18 of her petition that she filed a complaint with the PNP Police
Station in Cotobato and in Jolo, but she was told of an intriguing
tale by the police that her husband was having a good time with
another woman. The disappearance was alleged to have been
reported, too, to no less than the Governor of the ARMM, followed
by the respondents personal inquiries that yielded the factual
bases for her petition.[80]

These allegations, to our mind, sufficiently specify that

reports have been made to the police authorities, and
thatinvestigations should have followed. That the petition did not
state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction
of the police, their failure to perform their duty to investigate, or at
the very least, their reported failed efforts, should not be a
reflection on the completeness of the petition. To require the
respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as
well the manner and conduct of the investigation is an overly strict
interpretation of Section 5(d), given the respondents frustrations in
securing an investigation with meaningful results. Under these
circumstances, we are more than satisfied that the allegations of
the petition on the investigations undertaken are sufficiently
complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a
petition that otherwise is not supported by sufficient allegations to
constitute a proper cause of action as a means to fish for evidence.
[81]
The petitioners contend that the respondents petition did not
specify what legally available efforts were taken by the respondent,
and that there was an undue haste in the filing of the petition
when, instead of cooperating with authorities, the respondent
immediately invoked the Courts intervention.
We do not see the respondents petition as the petitioners
view it.
Section 5(e) merely requires that the Amparo petitioner
(the respondent in the present case) allege the actions and
recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the
threat, act or omission. The following allegations of the
respondents petition duly outlined the actions she had taken and
the frustrations she encountered, thus compelling her to file her
petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went
out of the pension house to take his early lunch but
while out on the street, a couple of burly men
believed to be police intelligence operatives,
forcibly took him and boarded the latter on a motor

43
vehicle then sped away without the knowledge of
his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and
reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions
in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was
immediately given a ready answer that Engr.
Tagitis could [have been] abducted by the Abu
Sayyaf group and other groups known to be
fighting against the government;
12. Being scared with these suggestions and insinuations
of the police officers, Kunnong reported the matter
to the [respondent](wife of Engr. Tagitis) by phone
and other responsible officers and coordinators of
the IDB Scholarship Programme in the Philippines
who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting
in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand,
approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del
Sur, who likewise sought help from some of their
friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody
of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against
his will in an earnest attempt of the police to
involve and connect Engr. Tagitis with the different
terrorist groups;
xxxx

17. [The respondent] filed her complaint with the PNP

Police Station at the ARMM in Cotobato and in Jolo,
as suggested by her friends, seeking their help to
find her husband, but [the respondents] request
and pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the
[petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to
the different Police Headquarters including the
police headquarters in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and
all these places have been visited by the
[respondent] in search for her husband, which
entailed expenses for her trips to these places
thereby resorting her to borrowings and beggings
[sic] for financial help from friends and relatives
only to try complying to the different suggestions
of these police officers, despite of which, her
efforts produced no positive results up to the
present time;
xxxx
25. [The
respondent]
has
exhausted
all
administrative avenues and remedies but to no
avail, and under the circumstances, [respondent]
has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced
Tagitis from the illegal clutches of [the petitioners],
their intelligence operatives and the like which are
in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT
OF AMPARO.
Based on these considerations, we rule that the
respondents petition for the Writ of Amparo is sufficient in form and
substance and that the Court of Appeals had every reason to
proceed with its consideration of the case.

The Desaparecidos

44
The present case is one of first impression in the use and
application of the Rule on the Writ of Amparo in an enforced
disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a
brief look at the historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising from
State action first attracted notice in Adolf Hitlers Nact und Nebel
Erlass or Night and Fog Decree of December 7, 1941. [82] The Third
Reichs Night and Fog Program, a State policy, was directed at
persons in occupied territories endangering German security; they
were transported secretly to Germany where they disappeared
without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing
information about the fate of these targeted persons.[83]
In the mid-1970s, the phenomenon of enforced
disappearances resurfaced, shocking and outraging the world
when individuals, numbering anywhere from 6,000 to 24,000, were
reported to have disappeared during the military regime in
Argentina.Enforced disappearances spread in Latin America, and
the issue became an international concern when the world noted
its widespread and systematic use by State security forces in that
continent under Operation Condor[84] and during the Dirty War[85]in
the 1970s and 1980s. The escalation of the practice saw political
activists secretly arrested, tortured, and killed as part of
governments counter-insurgency campaigns. As this form of
political brutality became routine elsewhere in the continent, the
Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances
were called the desaparecidos,[86] which literally means the
disappeared ones.[87] In general, there are three different kinds of
disappearance cases:
1)

those of people arrested without witnesses or

without positive identification of the arresting
agents and are never found again;

2)

those of prisoners who are usually arrested

without an appropriate warrant and held in
complete isolation for weeks or months while
their families are unable to discover their
whereabouts and the military authorities deny

having them in custody until they eventually

reappear in one detention center or another;
and
3)

those of victims of salvaging who have

disappeared until their lifeless bodies are later
discovered.[88]

In the Philippines, enforced disappearances generally fall

within the first two categories, [89] and 855 cases were recorded
during the period of martial law from 1972 until 1986. Of this
number, 595 remained missing, 132 surfaced alive and 127 were
found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases
were documented. Of this number, 407 remain missing, 108
surfaced alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos
term when only 87 cases were reported, while the three-year term
of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports
that as of March 31, 2008, the records show that there were a total
of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration. The Commission on
Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406
remained missing, 92 surfaced alive, 62 were found dead, and 76
still have undetermined status. [90] Currently, the United Nations
Working Group on Enforced or Involuntary Disappearance[91]reports
619 outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30, 2008. [92]
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the writ shall
cover extralegal killings and enforced disappearances or threats
thereof.[93] We note that although the writ specifically covers
enforced disappearances, this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:[94]

45
JUSTICE MARTINEZ: I believe that first and foremost
we should come up or formulate a specific
definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can
proceed to formulate the rules, definite rules
concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is
no law penalizing extrajudicial killings and
enforced disappearances so initially also we
have to [come up with] the nature of these
extrajudicial
killings
and
enforced
disappearances [to be covered by the Rule]
because
our
concept
of
killings
and
disappearances will define the jurisdiction of
the courts. So well have to agree among
ourselves about the nature of killings and
disappearances for instance, in other jurisdictions,
the rules only cover state actors. That is an
element incorporated in their concept of
extrajudicial
killings
and
enforced
disappearances. In other jurisdictions, the concept
includes acts and omissions not only of state actors
but also of non state actors. Well, more specifically
in the case of the Philippines for instance, should
these rules include the killings, the disappearances
which may be authored by let us say, the NPAs or
the leftist organizations and others.So, again we
need to define the nature of the extrajudicial
killings and enforced disappearances that will be
covered by these rules. [Emphasis supplied] [95]
In the end, the Committee took cognizance of several bills
filed in the House of Representatives [96] and in the Senate[97] on
extrajudicial killings and enforced disappearances, and resolved to
do away with a clear textual definition of these terms in the
Rule.The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the
appropriate remedy therefor, mindful that an elemental definition
may intrude into the ongoing legislative efforts.[98]
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to carry

out these killings and enforced disappearances and are now

penalized under the Revised Penal Code and special laws. [99] The
simple reason is that the Legislature has not spoken on the matter;
the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters
of substantive law that only the Legislature has the power to enact
under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive
laws on extra-judicial killings and enforced disappearances,
however, the Supreme Court is not powerless to act under its own
constitutional mandate to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, [100] since extrajudicial killings
and enforced disappearances, by their nature and purpose,
constitute State or private party violation of the constitutional
rights of individuals to life, liberty and security. Although the Courts
power is strictly procedural and as such does not diminish, increase
or modify substantive rights, the legal protection that the Court
can provide can be very meaningful through the procedures it sets
in addressing extrajudicial killings and enforced disappearances.
The Court, through its procedural rules, can set the procedural
standards and thereby directly compel the public authorities to act
on actual or threatened violations of constitutional rights. To state
the obvious, judicial intervention can make a difference even if
only procedurally in a situation when the very same investigating
public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify
once again that we do not rule on any issue of criminal
culpabilityfor
the
extrajudicial
killing
or
enforced
disappearance. This is an issue that requires criminal action before
our criminal courts based on our existing penal laws. Our
intervention is in determining whether an enforced disappearance
has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies
to address it. The burden for the public authorities to discharge in
these situations, under the Rule on the Writ of Amparo, is
twofold. The first is
to
ensure
that
all
efforts
at disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts are
less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is

46
preserved and his or her liberty and security restored. In these
senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the
production of the disappeared person and the restoration of his or
her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or
enforced disappearance is considered a flagrant violation of human
rights.[101] It does not only violate the right to life, liberty and
security of the desaparecido; it affects their families as well
through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced
disappearances have been said to be a double form of torture, with
doubly paralyzing impact for the victims, as they are kept ignorant
of their own fates, while family members are deprived of knowing
the whereabouts of their detained loved ones and suffer as well the
serious economic hardship and poverty that in most cases follow
the disappearance of the household breadwinner.[102]
The UN General Assembly first considered the issue of
Disappeared Persons in December 1978 under Resolution
33/173.The Resolution expressed the General Assemblys deep
concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested
the UN Commission on Human Rights to consider the issue of
enforced disappearances with a view to making appropriate
recommendations.[103]
In 1992, in response to the reality that the insidious
practice of enforced disappearance had become a global
phenomenon, the UN General Assembly adopted the Declaration
on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first
time, provided in its third preambular clause a working description
of enforced disappearance, as follows:

Deeply
concerned that
in
many
countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons
are arrested, detained or abducted against
their will or otherwise deprived of their
liberty by officials of different branches or
levels of Government, or by organized groups
or private individuals acting on behalf of, or
with the support, direct or indirect, consent
or acquiescence of the Government, followed
by a refusal to disclose the fate or
whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of
their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN
General Assembly adopted the International Convention for the
Protection of All Persons from Enforced Disappearance
(Convention).[105] The Convention was opened for signature in Paris,
France on February 6, 2007. [106] Article 2 of the Convention defined
enforced disappearance as follows:
For the purposes of this Convention, enforced
disappearance is considered to be the arrest,
detention, abduction or any other form of
deprivation of liberty by agents of the State or by
persons or groups of persons acting with the
authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate
or whereabouts of the disappeared person, which
place such a person outside the protection of the
law. [Emphasis supplied]
The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced
disappearance[107] and that this right is non-derogable.[108] It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties
to codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law. [109] It also recognizes

47
the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the investigation.
[110]
Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the
fate and whereabouts of the victim are established.[111]

As a matter of human right and fundamental freedom and as a

policy matter made in a UN Declaration, the ban on enforced
disappearance cannot but have its effects on the country, given
our own adherence to generally accepted principles of
international law as part of the law of the land.[115]
In the recent case of Pharmaceutical and Health Care
Association of the Philippines v. Duque III,[116] we held that:

Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to
enact any law penalizing enforced disappearance as a
crime. The absence of a specific penal law, however, is not
a stumbling block for action from this Court, as heretofore
mentioned; underlying every enforced disappearance is a
violation of the constitutional rights to life, liberty and
security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its
terms), the Court is guided, in acting on Amparo cases, by the
reality that the Philippines is a member of the UN, bound by its
Charter and by the various conventions we signed and ratified,
particularly the conventions touching on humans rights. Under the
UN Charter, the Philippines pledged to promote universal respect
for, and observance of, human rights and fundamental freedoms
for all without distinctions as to race, sex, language or religion.
[112]
Although no universal agreement has been reached on the
precise extent of the human rights and fundamental freedoms
guaranteed to all by the Charter, [113] it was the UN itself that issued
the Declaration on enforced disappearance, and this Declaration
states:[114]
Any act of enforced disappearance is an offence
to dignity. It is condemned as a denial of the
purposes of the Charter of the United Nations
and as a grave and flagrant violation of
human rights and fundamental freedoms
proclaimed in the Universal Declaration of
Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis
supplied]

Under the 1987 Constitution, international law can

become part of the sphere of domestic law either
by transformation orincorporation.
The
transformation
method
requires
that
an
international law be transformed into a domestic
law through a constitutional mechanism such as
local legislation. The incorporation method
applies
when,
by
mere
constitutional
declaration, international law is deemed to
have the force of domestic law. [Emphasis
supplied]
We characterized generally accepted principles of international law
as norms of general or customary international law that are binding
on all states. We held further:[117]
[G]enerally accepted principles of international law,
by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even
if they do not derive from treaty obligations.
The classical formulation in international law
sees those customary rules accepted as
binding result from the combination [of] two
elements: the established, widespread, and
consistent practice on the part of States; and
a psychological
element
known
as
the opinion juris sive necessitates (opinion as
to law or necessity). Implicit in the latter element is
a belief that the practice in question is
rendered obligatory by the existence of a
rule of law requiring it. [Emphasis in the
original]
The most widely accepted statement of sources of international
law today is Article 38(1) of the Statute of the International Court

48
of Justice, which provides that the Court shall apply international
custom, as evidence of a general practice accepted as law.[118] The
material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions relating
to legal questions in the UN General Assembly. [119] Sometimes
referred to as evidence of international law, [120] these sources
identify the substance and content of the obligations of States and
are indicative of the State practice and opinio juris requirements of
international law.[121] We note the following in these respects:
First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted
the Inter-American Convention on Enforced Disappearance of
Persons in June 1994.[122] State parties undertook under this
Convention not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions
includes the States obligation to enact the crime of forced
disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was
committed within their jurisdiction, when the victim is a national of
that State, and when the alleged criminal is within its territory and
it does not proceed to extradite him, which can be interpreted as
establishing universal jurisdiction among the parties to the InterAmerican Convention.[124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal. [125]
Second, in Europe, the European Convention on Human Rights has
no explicit provision dealing with the protection against enforced
disappearance. The European Court of Human Rights (ECHR),
however, has applied the Convention in a way that provides ample
protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to
life; Article 3 on the prohibition of torture; Article 5 on the right to
liberty and security; Article 6, paragraph 1 on the right to a fair
trial; and Article 13 on the right to an effective remedy. A leading
example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation
of the right to liberty and security of the disappeared person when
the applicants son disappeared after being taken into custody by

Turkish forces in the Kurdish village of Agilli in November 1993. It

further found the applicant (the disappeared persons mother) to be
a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.[127]
Third, in the United States, the status of the prohibition on
enforced disappearance as part of customary international law is
recognized in the most recent edition of Restatement of the Law:
The Third,[128] which provides that [a] State violates international
law if, as a matter of State policy, it practices, encourages, or
condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that
finds close identification with enforced disappearance the matter of
torturethe United States Court of Appeals for the Second Circuit
Court held in Filartiga v. Pena-Irala[130] that the prohibition on
torture had attained the status of customary international law. The
court further elaborated on the significance of UN declarations, as
follows:
These U.N. declarations are significant because
they specify with great precision the obligations of
member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that
they do not know what human rights they promised
in the Charter to promote. Moreover, a U.N.
Declaration is, according to one authoritative
definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great
and lasting importance are being enunciated.
Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer
fits into the dichotomy of binding treaty against
non-binding pronouncement,' but is rather an
authoritative statement of the international
community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the
expectation is gradually justified by State practice,
a declaration may by custom become recognized
as laying down rules binding upon the States."
Indeed, several commentators have concluded that
the Universal Declaration has become, in toto, a

49
part of binding, customary
[Citations omitted]

international

law.

Fourth, in interpreting Article 2 (right to an effective domestic

remedy) of the International Convention on Civil and Political
Rights (ICCPR), to which the Philippines is both a signatory and a
State Party, the UN Human Rights Committee, under the Office of
the High Commissioner for Human Rights, has stated that the act
of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of
the ICCPR, and the act may also amount to a crime against
humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing
the International Criminal Court (ICC) also covers enforced
disappearances insofar as they are defined as crimes against
humanity,[132] i.e., crimes committed as part of a widespread or
systematic attack against any civilian population, with knowledge
of the attack. While more than 100 countries have ratified the
Rome Statute,[133] the Philippines is still merely a signatory and has
not yet ratified it. We note that Article 7(1) of the Rome Statute has
been incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels
for Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia. [134] In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has given
rise to a number of national criminal provisions also covering
enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of
the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows
thatenforced disappearance as a State practice has been
repudiated by the international community, so that the ban
on it is now a generally accepted principle of international
law, which we should consider a part of the law of the land,
and which we should act upon to the extent already
allowed under our laws and the international conventions
that bind us.
The following civil or political rights under the Universal
Declaration of Human Rights, the ICCPR and the International

Convention on Economic, Social and Cultural Rights (ICESR) may

be infringed in the course of a disappearance:[136]
1) the right to recognition as a person before the
law;
2) the right to liberty and security of the
person;
3) the right not to be subjected to torture and other
cruel, inhuman or degrading treatment or
punishment;
4) the right to life, when the disappeared person is
killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including
reparation and compensation;
8) the right to know the truth regarding the
circumstances of a disappearance.
9) the right to protection and assistance to the
family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a
state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or
freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding
that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a
remedy
shall
have
his
right
thereto
determined
by
competent
judicial,
administrative or legislative authorities, or by
any other competent authority provided for by the
legal system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall
enforce such remedies when granted. [Emphasis
supplied]

50
In General Comment No. 31, the UN Human Rights Committee
opined that the right to an effective remedy under Article 2 of the
ICCPR includes the obligation of the State to investigate ICCPR
violations promptly, thoroughly, and effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition
to effective protection of Covenant rights, States
Parties must ensure that individuals also
have accessible and effective remedies to
vindicate those rights The Committee attaches
importance
to
States
Parties'
establishing
appropriate
judicial
and administrative
mechanisms for addressing claims of rights
violations under domestic law Administrative
mechanisms are particularly required to give
effect to the general obligation to investigate
allegations of violations promptly, thoroughly
and effectively through independent and
impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of
itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an
essential element of the right to an effective
remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same
General Comment No. 31 that failure to investigate as well as
failure to bring to justice the perpetrators of ICCPR violations could
in and of itself give rise to a separate breach of the Covenant, thus:
[138]

18. Where the investigations referred to in

paragraph 15 reveal violations of certain Covenant
rights, States Parties must ensure that those
responsible are brought to justice. As with
failure to investigate, failure to bring to
justice perpetrators of such violations could
in and of itself give rise to a separate breach
of the Covenant. These obligations arise
notably in respect of those violations
recognized as criminal under either domestic
or international law, such as torture and similar
cruel, inhuman and degrading treatment (article 7),
summary and arbitrary killing (article 6) and

enforced disappearance (articles 7 and 9 and,

frequently, 6). Indeed, the problem of impunity
for these violations, a matter of sustained concern
by the Committee, may well be an important
contributing element in the recurrence of the
violations. When committed as part of a
widespread or systematic attack on a civilian
population, these violations of the Covenant are
crimes against humanity (see Rome Statute of the
International Criminal Court, article 7). [Emphasis
supplied]
In Secretary of National Defense v. Manalo,[139] this Court, in ruling
that the right to security of persons is a guarantee of the
protection of ones right by the government, held that:
The right to security of person in this third sense is
a corollary of the policy that the State guarantees
full respect for human rights under Article II,
Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and
security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered
ineffective
if
government
does
not
afford protection to these rights especially when
they are under threat. Protection includes
conducting
effective
investigations,
organization of the government apparatus to
extend protection to victims of extralegal
killings or enforced disappearances (or
threats thereof) and/or their families, and
bringing offenders to the bar of justice. The
Inter-American Court of Human Rights stressed the
importance of investigation in theVelasquez
Rodriguez Case, viz:
(The
duty
to
investigate) must be undertaken
in a serious manner and not as
a mere formality preordained
to
be
ineffective. An
investigation
must
have
an
objective and be assumed by the
State as its own legal duty, not
as a step taken by private

51
interests that depends upon
the initiative of the victim or
his family or upon their offer of
proof, without an effective search
for the truth by the government.
[Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR
interpreted the right to security not only as a prohibition on the
State against arbitrary deprivation of liberty, but also as the
imposition of a positive duty to afford protection to the right to
liberty.The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have
been effected in conformity with the substantive
and procedural rules of national law but must
equally be in keeping with the very purpose of
Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that
individual, it is incumbent on the authorities to
account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring
the authorities to take effective measures to
safeguard against the risk of disappearance
and
to
conduct
a
prompt
effective
investigation into an arguable claim that a
person has been taken into custody and has
not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the
Writ of Amparo, which the Court made effective on October 24,
2007. Although the Amparo Rule still has gaps waiting to be filled
through substantive law, as evidenced primarily by the lack of a
concrete definition of enforced disappearance, the materials
cited above, among others, provide ample guidance and
standards on how, through the medium of the Amparo Rule,
the Court can provide remedies and protect the
constitutional rights to life, liberty and security that
underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has

discharged the burden of proving the allegations of the petition for
the Writ of Amparo by the degree of proof required by
the Amparo Rule, we shall discuss briefly the unique evidentiary
difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of
the Amparo Rule shall encounter.
These difficulties largely arise because the State itself the party
whose
involvement
is
alleged
investigates
enforced
disappearances. Past experiences in other jurisdictions show that
the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities
of the direct perpetrators.[141] Experts note that abductors are
well organized, armed and usually members of the military or
police forces, thus:
The victim is generally arrested by the security forces or by
persons acting under some form of governmental authority.
In many countries the units that plan, implement and
execute the program are generally specialized, highlysecret bodies within the armed or security forces. They are
generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to
avoid or prevent any interference by the "legal" police
forces. These authorities take their victims to secret
detention centers where they subject them to interrogation
and torture without fear of judicial or other controls.[142]
In addition, there are usually no witnesses to the crime; if
there are, these witnesses are usually afraid to speak out publicly
or to testify on the disappearance out of fear for their own lives.
[143]
We have had occasion to note this difficulty in Secretary of
Defense v. Manalo[144] when we acknowledged that where powerful
military officers are implicated, the hesitation of witnesses to
surface and testify against them comes as no surprise.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance i.e., the corpus delicti or
the victims body is usually concealed to effectively thwart the start
of any investigation or the progress of one that may have begun.
[145]
The problem for the victims family is the States virtual

52
monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case
ofVelasquez Rodriguez[146] that inherent to the practice of enforced
disappearance is the deliberate use of the States power to destroy
the pertinent evidence. The IACHR described the concealment as a
clear attempt by the State to commit the perfect crime.[147]
Third is the element of denial; in many cases, the State
authorities deliberately deny that the enforced disappearance ever
occurred.[148] Deniability is central to the policy of enforced
disappearances, as the absence of any proven disappearance
makes it easier to escape the application of legal standards
ensuring the victims human rights.[149] Experience shows that
government officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country,
or that their names have merely been invented.[150]
These considerations are alive in our minds, as these are the
difficulties we confront, in one form or another, in our consideration
of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the
parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition
shall be summary. However, the court, justice or judge
may call for a preliminary conference to simplify the issues
and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence
Required. The parties shall establish their claims
by substantial evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the
performance of duty.

The respondent public official or employee cannot invoke

the presumption that official duty has been regularly
performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition
are proven by substantial evidence, the court
shall grant the privilege of the writand such reliefs as may
be proper and appropriate; otherwise, the privilege shall
be denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to
the usual preponderance of evidence or proof beyond reasonable
doubt in court proceedings) reveal the clear intent of the framers
of the Amparo Rule to have the equivalent of an administrative
proceeding,
albeit
judicially
conducted,
in
addressing Amparosituations. The standard of diligence required
the duty of public officials and employees to observe extraordinary
diligence point, too, to the extraordinary measures expected in the
protection of constitutional rights and in the consequent handling
and investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to
properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the
allegations by substantial evidence. Once a rebuttable case has
been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The
rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation
of the victims constitutional rights to life, liberty or security, and
the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial
Relations[151] provided the Court its first opportunity to define the
substantial evidence required to arrive at a valid decision in
administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion. [citations omitted] The

53
statute provides that the rules of evidence
prevailing in courts of law and equity shall not be
controlling. The obvious purpose of this and similar
provisions is to free administrative boards from the
compulsion of technical rules so that the mere
admission of matter which would be deemed
incompetent in judicial proceedings would not
invalidate the administrative order. [citations
omitted] But this assurance of a desirable flexibility
in administrative procedure does not go so far as to
justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo, [152] which was the Courts first
petition for a Writ of Amparo, we recognized that the full and
exhaustive proceedings that the substantial evidence standard
regularly requires do not need to apply due to the summary nature
of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial
relief as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of
evidence, or administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the
nature of enforced disappearances, heretofore discussed, which
difficulties this Court must frontally meet if the Amparo Rule is to
be given a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due
process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced
with a lack of direct evidence that the government of Honduras
was involved in Velasquez Rodriguez disappearance adopted a
relaxed and informal evidentiary standard, and established the rule
that presumes governmental responsibility for a disappearance if it

can be proven that the government carries out a general practice

of enforced disappearances and the specific case can be linked to
that practice.[154] The IACHR took note of the realistic fact that
enforced disappearances could be proven only through
circumstantial or indirect evidence or by logical inference;
otherwise, it was impossible to prove that an individual had been
made to disappear. It held:
130. The practice of international and domestic
courts shows that direct evidence, whether
testimonial or documentary, is not the only type of
evidence that may be legitimately considered in
reaching a decision. Circumstantial evidence,
indicia, and presumptions may be considered,
so long as they lead to conclusions consistent
with the facts.
131. Circumstantial or presumptive evidence
is especially important in allegations of
disappearances,
because
this
type
of
repression is characterized by an attempt to
suppress
all
information
about
the
kidnapping or the whereabouts and fate of
the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez
(Manfredo) was carried out by agents who acted under cover of
public authority, the IACHR relied on circumstantial evidence
including the hearsay testimony of Zenaida Velsquez, the
victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo
kidnapped by men in civilian clothes in broad daylight. She also
told the Court that a former Honduran military official had
announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces.
[155]
The IACHR likewise considered the hearsay testimony of a
second witness who asserted that he had been told by a Honduran
military officer about the disappearance, and a third witness who
testified that he had spoken in prison to a man who identified
himself as Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the
unique circumstances that enforced disappearance cases pose to
the courts; to have an effective remedy, the standard of evidence
must be responsive to the evidentiary difficulties faced. On the one

54
hand, we cannot be arbitrary in the admission and appreciation of
evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the
problem if a wrong is addressed by the commission of another
wrong.On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before
us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the
substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it
is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue at
hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration
of evidence is not at all novel in the Philippine legal system. In
child abuse cases, Section 28 of the Rule on Examination of a Child
Witness[157] is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a
child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain
prerequisites and the right of cross-examination by the adverse
party.The admission of the statement is determined by the court in
light of specified subjective and objective considerations that
provide sufficient indicia of reliability of the child witness. [158] These
requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility
in the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN
Declaration we have cited?

The Convention defines enforced disappearance as the arrest,

detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.
[159]
Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form
of deprivation of liberty;
(b) carried out by agents of the State or
persons or groups of persons acting with
the
authorization,
support
or
acquiescence of the State;
(c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the
disappeared person; and
(d) placement of the disappeared person outside
the protection of the law. [Emphasis supplied]
We find no direct evidence indicating how the victim
actually disappeared. The direct evidence at hand only shows that
Tagitis went out of the ASY Pension House after depositing his room
key with the hotel desk and was never seen nor heard of
again. The undisputed conclusion, however, from all concerned the
petitioner, Tagitis colleagues and even the police authorities is that
Tagistis disappeared under mysterious circumstances and was
never seen again. The respondent injected the causal element in
her petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives
of PNP CIDG Zamboanga abducted or arrested Tagitis. If at all, only
the respondents allegation that Tagistis was under CIDG
Zamboanga custody stands on record, but it is not supported by
any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two
sources of information as her bases for her allegation that Tagistis
had been placed under government custody (in contrast with CIDG
Zamboanga custody). The first was an unnamed friend in

55
Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis
was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish
that Col. Ancanan gave them any information that Tagitis was in
government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was
Col. Kasim, whom the respondent, together with her witness Mrs.
Talbin, met in Camp Katitipan in Davao City.
Col. Kasim never denied that he met with the respondent and her
friends, and that he provided them information based on the input
of an unnamed asset. He simply claimed in his testimony that the
informal letter he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also
stressed that the information he provided the respondent was
merely a raw report from barangay intelligence that still needed
confirmation and follow up as to its veracity.[167]
To be sure, the respondents and Mrs. Talbins testimonies were far
from perfect, as the petitioners pointed out. The respondent
mistakenly characterized Col. Kasim as a military officer who told
her that her husband is being abducted because he is under
custodial investigation because he is allegedly parang liason ng
J.I. The petitioners also noted that Mrs. Talbins testimony imputing
certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the
military, but he is not certain whether it is the PNP or AFP is not
worthy of belief, since Sr. Supt. Kasim is a high ranking police
officer who would certainly know that the PNP is not part of the
military.
Upon deeper consideration of these inconsistencies, however, what
appears clear to us is that the petitioners never really steadfastly
disputed or presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that
should not affect the credibility of the respondent and Mrs. Talbin;
the inconsistencies are not on material points.[168] We note, for
example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the
police and the military is not unusual. As a rule, minor

inconsistencies such as these indicate truthfulness rather than

prevarication[169]and only tend to strengthen their probative value,
in contrast to testimonies from various witnesses dovetailing on
every detail; the latter cannot but generate suspicion that the
material circumstances they testified to were integral parts of a
well thought of and prefabricated story.[170]
Based on these considerations and the unique evidentiary
situation in enforced disappearance cases, we hold it duly
established that Col. Kasim informed the respondent and
her friends, based on the informants letter, that Tagitis,
reputedly a liaison for the JI and who had been under
surveillance since January 2007, was in good hands and
under custodial investigation for complicity with the JI after
he was seen talking to one Omar Patik and a certain Santos
of Bulacan, a Balik Islam charged with terrorism. The
respondents and Mrs. Talbins testimonies cannot simply be
defeated by Col. Kasims plain denial and his claim that he had
destroyed his informants letter, the critical piece of evidence that
supports or negates the parties conflicting claims. Col. Kasims
admitted destruction of this letter effectively, a suppression of this
evidence raises the presumption that the letter, if produced, would
be proof of what the respondent claimed. [171] For brevity, we shall
call the evidence of what Col. Kasim reported to the respondent to
be the Kasim evidence.
Given this evidence, our next step is to decide whether we can
accept this evidence, in lieu of direct evidence, as proof that the
disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for
custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term custodial
investigation, and does not at all point to CIDG Zamboanga as
Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence i.e., evidence whose probative value is not based on the
personal knowledge of the witnesses (the respondent, Mrs. Talbin
and Col. Kasim himself) but on the knowledge of some other
person not on the witness stand (the informant).[172]

56
To say that this piece of evidence is incompetent and inadmissible
evidence of what it substantively states is to acknowledge as the
petitioners effectively suggest that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as
it cannot allow for the special evidentiary difficulties that are
unavoidably
present
in Amparo situations,
particularly
in
extrajudicial
killings
and
enforced
disappearances.
The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional
rights. It was promulgated to provide effective and timely
remedies, using and profiting from local and international
experiences in extrajudicial killings and enforced disappearances,
as the situation may require.Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced
disappearances with the flexibility that these difficulties demand.
To give full meaning to our Constitution and the rights it protects,
we hold that, as in Velasquez, we should at least take a close look
at the available evidence to determine the correct import of every
piece of evidence even of those usually considered inadmissible
under the general rules of evidence taking into account the
surrounding circumstances and the test of reason that we can use
as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before
us is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him
with an air of mystery. He was reputedly a consultant of the World
Bank and a Senior Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to Jolo for an
overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his
overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early
on informed the Jolo police that Tagitis may have taken funds given
to him in trust for IDB scholars. Prof Matli later on stated that he
never accused Tagitis of taking away money held in trust, although
he confirmed that the IDB was seeking assistance in locating funds
of IDB scholars deposited in Tagitis personal account. Other than
these pieces of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal

circumstances. While the Amparo petition recited that he was
taken away by burly men believed to be police intelligence
operatives, no evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was
last seen at 12.30 p.m. of October 30, 2007 the day he arrived in
Jolo and was never seen again.
The Kasim evidence assumes critical materiality given the dearth
of direct evidence on the above aspects of the case, as it supplies
the gaps that were never looked into and clarified by police
investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into
question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the
part of the respondent, characterize the attempts to locate
Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis
could have been taken by the Abu Sayyaf or other groups fighting
the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo
police arrived at this conclusion. The respondents own inquiry in
Jolo yielded the answer that he was not missing but was with
another woman somewhere. Again, no evidence exists that this
explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded
ambivalent results not useful for evidentiary purposes. Thus, it was
only the inquiry from Col. Kasim that yielded positive results. Col.
Kasims story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasims story is that the abduction
came after Tagitis was seen talking with Omar Patik and a certain
Santos of Bulacan, a Balik Islam charged with terrorism. Mrs. Talbin
mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation
ever pursued these leads. Notably, TASK FORCE TAGITIS to which
this information was relayed did not appear to have lifted a finger
to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA
made by the petitioners. Then PNP Chief Gen. Avelino I. Razon

57
merely reported the directives he sent to the ARMM Regional
Director and the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo
M. Doromal, for his part, also reported negative results after
searching all divisions and departments [of the CIDG] for a person
named Engr. Morced N. Tagitis . . . and after a diligent and
thorough research, records show that no such person is being
detained in the CIDG or any of its department or divisions. PNPPACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM
Regional Director PC Superintendent Joel R. Goltiao did no better in
their affidavits-returns, as they essentially reported the results of
their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested
when the CA constituted TASK FORCE TAGITIS, with specific
directives on what to do. The negative results reflected in the
Returns on the writ were again replicated during the three hearings
the CA scheduled. Aside from the previously mentioned retraction
that Prof. Matli made to correct his accusation that Tagitis took
money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was no basis to
conclude that the CIDG or any police unit had anything to do with
the disappearance of Tagitis; he likewise considered it premature to
conclude that Tagitis simply ran away with the money in his
custody. As already noted above, the TASK FORCE notably did not
pursue any investigation about the personal circumstances of
Tagitis, his background in relation to the IDB and the background
and activities of this Bank itself, and the reported sighting of
Tagistis with terrorists and his alleged custody in Talipapao,
Sulu. No attempt appears to have ever been made to look into the
alleged IDB funds that Tagitis held in trust, or to tap any of the
assets who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings
that it was only as late as January 28, 2008 or three months after
the disappearance that the police authorities requested for clear
pictures of Tagitis. Col. Kasim could not attend the trial because his
subpoena was not served, despite the fact that he was designated
as Ajirims replacement in the latters last post.Thus, Col. Kasim was
not then questioned. No investigation even an internal one

appeared to have been made to inquire into the identity of Col.

Kasims asset and what he indeed wrote.
We glean from all these pieces of evidence and
developments a consistency in the governments denial of
any complicity in the disappearance of Tagitis, disrupted
only by the report made by Col. Kasim to the respondent at
Camp Katitipan.Even Col. Kasim, however, eventually denied
that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive
trait that runs through these developments is the
governments
dismissive
approach
to
the
disappearance, starting from the initial response by the Jolo
police to Kunnongs initial reports of the disappearance, to the
responses made to the respondent when she herself reported and
inquired about her husbands disappearance, and even at TASK
FORCE TAGITIS itself.
As the CA found through TASK FORCE TAGITIS, the investigation
was at best haphazard since the authorities were looking for a man
whose picture they initially did not even secure. The returns and
reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because it
was unrecorded or officially unauthorized, no record of custody
would ever appear in the CIDG records; Tagitis, too, would not be
detained in the usual police or CIDG detention places. In sum,
none of the reports on record contains any meaningful
results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can
never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to search
for Tagitis.Indisputably, the police authorities from the very
beginning failed to come up to the extraordinary diligence that
the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims
disclosure, made in an unguarded moment, unequivocally point to
some government complicity in the disappearance. The consistent
but unfounded denials and the haphazard investigations cannot

58
but point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance? Would
not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the governments cap
under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the
UN Declaration, heretofore cited and quoted,[173] the evidence at
hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law a situation that will subsist
unless this Court acts.
This kind of fact situation and the conclusion reached are not
without precedent in international enforced disappearance
rulings. While the facts are not exactly the same, the facts of this
case run very close to those of Timurtas v. Turkey,[174] a case
decided by ECHR. The European tribunal in that case acted on the
basis of the photocopy of a post-operation report in finding that
Abdulvahap Timurtas (Abdulvahap) was abducted and later
detained by agents (gendarmes) of the government of Turkey. The
victim's father in this case brought a claim against Turkey for
numerous violations of the European Convention, including the
right to life (Article 2) and the rights to liberty and security of a
person (Article 5). The applicant contended that on August 14,
1993,gendarmes apprehended his son, Abdulvahap for being a
leader of the Kurdish Workers Party (PKK) in the Silopi region. The
petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first
detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness
evidence
of
the
apprehension
or
subsequent
detainment, the
applicant
presented
evidence
corroborating his version of events, including a photocopy
of a post-operation report signed by the commander of
gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent
interrogation during detention where he was accused of being a
leader of the PKK in the Silopi region. On this basis, Turkey was
held responsible for Abdulvahaps enforced disappearance.

Following the lead of this Turkish experience - adjusted to

the Philippine legal setting and the Amparo remedy this
Court has established, as applied to the unique facts and
developments of this case we believe and so hold that the
government in general, through the PNP and the PNP-CIDG,
and in particular, the Chiefs of these organizations together
with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic
Act No. 6975, otherwise known as the PNP Law, [175]specifies the
PNP as the governmental office with the mandate to investigate
and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. The PNP-CIDG,
as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified,
is the investigative arm of the PNP and is mandated to investigate
and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes. [176] Under
the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised
Penal Code and operates against organized crime groups, unless
the President assigns the case exclusively to the National Bureau of
Investigation (NBI).[177] No indication exists in this case showing
that the President ever directly intervened by assigning the
investigation of Tagitis disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and
members were the ones who were remiss in their duties when the
government completely failed to exercise the extral'>To fully
enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their
results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG
shall initially present to the CA a plan of action for further
investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf
of this Court, the CA shall pass upon: the need for the PNP and the
PNP-CIDG to make disclosures of matters known to them as
indicated in this Decision and as further CA hearings may indicate;
the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and

59
the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision. The PNP and the
PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4 th quarter counted
from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners
petition for review on certiorari for lack of merit, andAFFIRM the
decision of the Court of Appeals dated March 7, 2008 under the
following terms:
a. Recognition that the disappearance of Engineer Morced N.
Tagitis is an enforced disappearance covered by the Rule on the
Writ of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct
of proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
and holding him accountable with the obligation to disclose
information known to him and to his assets in relation with the
enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP
and the PNP-CIDG shall initially present to the Court of Appeals a
plan of action for further investigation, periodically reporting their
results to the Court of Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a

quarterly report with its recommendations, copy furnished the
incumbent PNP and PNP-CIDG Chiefs as petitioners and the
respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit its
full report for the consideration of this Court at the end of the
4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals made pursuant
to this Decision shall be given to, and shall be directly enforceable
against, whoever may be the incumbent Chiefs of the Philippine
National Police and its Criminal Investigation and Detection Group,
under pain of contempt from this Court when the initiatives and
efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature
of Amparo cases and their varying attendant circumstances, these
directives particularly, the referral back to and monitoring by the
CA are specific to this case and are not standard remedies that can
be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General
Alexander Yano, Commanding General, Philippine Army, and
General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Zamboanga City, is hereby AFFIRMED.
SO ORDERED.

60
BAYAN MUNA, as represented by Rep.
SATUR OCAMPO, Rep. CRISPIN BELTRAN,
and Rep. LIZA L. MAZA,
Petitioner,

G.R. No. 159618

February 1, 2011
- versus ALBERTO ROMULO, in his capacity as
Executive Secretary, and BLAS F. OPLE, in
his capacity as Secretary of Foreign
Affairs,
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule
65 assails and seeks to nullify the Non-Surrender Agreement
concluded by and between the Republic of the Philippines (RP) and
the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group
established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive
Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome
Statute[3] establishing the International Criminal Court (ICC)
with the power to exercise its jurisdiction over persons for the
most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.[4] The serious
crimes adverted to cover those considered grave under
international law, such as genocide, crimes against humanity, war
crimes, and crimes of aggression.[5]

On December 28, 2000, the RP, through Charge dAffaires Enrique

A. Manalo, signed the Rome Statute which, by its terms, is subject
to ratification, acceptance or approval by the signatory states. [6] As
of the filing of the instant petition, only 92 out of the139 signatory
countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03 [7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA
Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in
effect
the Agreement with
the
US
government. In esse,
the Agreement aims to protect what it refers to and defines
as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals. [8] It is
reflective of the increasing pace of the strategic security and
defense partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and between
the US and 33 other countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or
former Government officials, employees (including
contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other
shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any
other entity or third country, or expelled to a third country,
for the purpose of surrender to or transfer to any

61
international tribunal, unless such tribunal has been
established by the UN Security Council.

comment,
respondents
the Agreement.

3. When the [US] extradites, surrenders, or otherwise

transfers a person of the Philippines to a third country, the
[US] will not agree to the surrender or transfer of that
person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].

The Issues

4. When the [GRP] extradites, surrenders, or otherwise

transfers a person of the [USA] to a third country, the
[GRP] will not agree to the surrender or transfer of that
person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one year after
the date on which one party notifies the other of its intent
to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective
date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador
Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the
said agreement did not require the advice and consent of the US
Senate.[10]

assert

the

constitutionality

I. WHETHER THE [RP] PRESIDENT AND THE [DFA]

SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
CONCLUDING
THE RP-US
NON
SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY
SIGNED
THE ROME
STATUTE
OF
THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE
PHILIPPINE SENATE.
A. Whether
by
entering
into
the
x
x
x Agreement Respondents gravely abused their discretion
when
they
capriciously
abandoned,
waived
and
relinquished our only legitimate recourse through
the Rome Statute of the [ICC] to prosecute and try persons
as defined in the x x x Agreement, x x x or literally any
conduit of American interests, who have committed crimes
of genocide, crimes against humanity, war crimes and the
crime of aggression, thereby abdicating Philippine
Sovereignty.
B.
Whether after the signing and pending ratification of
the Rome Statute of the [ICC] the [RP] President and the
[DFA] Secretary x x x are obliged by the principle of good
faith to refrain from doing all acts which would
substantially impair the value of the undertaking as signed.

In this proceeding, petitioner imputes grave abuse of discretion to

respondents in concluding and ratifying the Agreement and prays
that it be struck down as unconstitutional, or at least declared as
without force and effect.

C.
Whether the x x x Agreement constitutes an act
which defeats the object and purpose of the Rome Statute
of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the
President affixed on the Rome Statute of the International
Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.

For their part, respondents question petitioners standing to

maintain a suit and counter that the Agreement, being in the
nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their

D. Whether the RP-US Non-Surrender Agreement is

void and unenforceable for grave abuse of discretion
amounting to lack or excess of jurisdiction in connection
with its execution.

of

62
II. WHETHER
THE RP-US
NON
SURRENDER
AGREEMENT IS
VOID AB
INITIO FOR
CONTRACTING
OBLIGATIONS THATARE EITHER IMMORAL OR OTHERWISE
AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES
OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING
AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x
x x.[11]
The foregoing issues may be summarized into two: first, whether
or not the Agreement was contracted validly, which resolves itself
into the question of whether or not respondents gravely abused
their discretion in concluding it; and second, whether or not
theAgreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we
shall first tackle the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends
that the issue of the validity or invalidity of the Agreementcarries
with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually
referred to as the emergency powers cases, [12] in which ordinary
citizens and taxpayers were accorded the personality to question
the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a
given question.[13] Specifically, it is a partys personal and
substantial interest in a case where he has sustained or will sustain
direct injury as a result[14] of the act being challenged, and calls for
more than just a generalized grievance. [15] The term interest refers
to material interest, as distinguished from one that is merely
incidental.[16] The rationale for requiring a party who challenges the
validity of a law or international agreement to allege such a
personal stake in the outcome of the controversy is to assure the
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions.[17]

Locus standi, however, is merely a matter of procedure and it has

been recognized that, 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. [18] Consequently,
in a catena of cases,[19] this Court has invariably adopted a liberal
stance on locus standi.
Going by the petition, petitioners representatives pursue the
instant suit primarily as concerned citizens raising issues of
transcendental importance, both for the Republic and the citizenry
as a whole.
When suing as a citizen to question the validity of a law or other
government action, a petitioner needs to meet certain specific
requirements before he can be clothed with standing. Francisco, Jr.
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.[20] expounded on this requirement, thus:
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. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.[21]
In the case at bar, petitioners representatives have complied with
the qualifying conditions or specific requirements exacted under
the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their
assertions questioning the Agreement are made of a public
right, i.e., to ascertain that the Agreement did not go against

63
established national policies, practices, and obligations bearing on
the States obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in
general of the issue at hand impels the Court to brush aside the
procedural barrier posed by the traditional requirement of locus
standi, as we have done in a long line of earlier cases, notably in
the old but oft-cited emergency powers cases [22] and Kilosbayan v.
Guingona, Jr.[23] In cases of transcendental importance, we wrote
again in Bayan v. Zamora,[24] The Court may relax the standing
requirements and allow a suit to prosper even where there is no
direct injury to the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara,
that it will not shirk, digress from or abandon its sacred duty and
authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of
the government,[25] we cannot but resolve head on the issues
raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution
or is done with grave abuse of discretion, it becomes not only the
right but in fact the duty of the judiciary to settle it. As in this
petition, issues are precisely raised putting to the fore the propriety
of the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form,
its threshold posture being that E/N BFO-028-03 cannot be a valid
medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain wellrecognized international doctrines, practices, and jargonsis
untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of the law
of the land and adheres to the policy of peace, cooperation, and
amity with all nations.[26] An exchange of notes falls into the
category of inter-governmental agreements,[27] which is an
internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:

An exchange of notes is a record of a routine agreement,

that has many similarities with the private law
contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of
the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text
of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.[28]
In another perspective, the terms exchange of notes and
executive agreements have been used interchangeably,
exchange of notes being considered a form of executive
agreement that becomes binding through executive action.
[29]
On the other hand, executive agreements concluded by
the President sometimes take the form of exchange of
notes and at other times that of more formal documents
denominated agreements or protocols.[30] As former US
High Commissioner to the Philippines Francis B. Sayre
observed
in
his
work, The
Constitutionality
of
Trade Agreement Acts:
The point where ordinary correspondence between this and
other governments ends and agreements whether
denominated executive agreements or exchange of notes
or otherwise begin, may sometimes be difficult of ready
ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-02803be it viewed as the Non-Surrender Agreement itself, or as an
integral instrument of acceptance thereof or as consent to be
boundis a recognized mode of concluding a legally binding
international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between states in
written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and
whatever its particular designation.[32] International agreements
may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not

64
require legislative concurrence and are usually less formal and deal
with a narrower range of subject matters than treaties.[33]
Under international law, there is no difference between treaties
and executive agreements in terms of their binding effects on the
contracting states concerned,[34] as long as the negotiating
functionaries have remained within their powers. [35] Neither, on the
domestic sphere, can one be held valid if it violates the
Constitution.[36] Authorities are, however, agreed that one is distinct
from another for accepted reasons apart from the concurrencerequirement aspect.[37] As has been observed by US constitutional
scholars, a treaty has greater dignity than an executive agreement,
because its constitutional efficacy is beyond doubt, a treaty having
behind it the authority of the President, the Senate, and the
people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious
validity, partaking as it does of the nature of a treaty; hence, it
must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the
Court reproduced the following observations made by US legal
scholars: [I]nternational agreements involving political issues or
changes of national policy and those involving international
arrangements of a permanent character usually take the form of
treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving
arrangements of a more or less temporary nature take the form of
executive agreements. [40]
Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories
that are enumerated in the Eastern Sea Trading case, and that may
be
covered
by
an
executive
agreement,
such
as
commercial/consular relations, most-favored nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case
of Adolfo v. CFI of Zambales and Merchant,[41] holding that an
executive agreement through an exchange of notes cannot be
used to amend a treaty.
We are not persuaded.

The categorization of subject matters that may be covered

by international agreements mentioned in Eastern Sea Trading is
not cast in stone. There are no hard and fast rules on the propriety
of entering, on a given subject, into a treaty or an executive
agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties
intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter
of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement each
labor under the pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the
Court rendered its decision in Eastern Sea Trading. Since then, the
conduct of foreign affairs has become more complex and the
domain of international law wider, as to include such subjects as
human rights, the environment, and the sea. In fact, in
the US alone, the executive agreements executed by its President
from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety,
among others.[43] Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the matter
of which the international agreement format would be convenient
to serve its best interest. As Francis Sayre said in his work referred
to earlier:
x x x It would be useless to undertake to discuss here the
large variety of executive agreements as such concluded
from time to time. Hundreds of executive agreements,
other than those entered into under the trade-agreement
act, have been negotiated with foreign governments. x x x
They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters,
the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a
treaty-authorized[44] or a treaty-implementing executive agreement,
[45]
which necessarily would cover the same matters subject of the
underlying treaty.

65
But over and above the foregoing considerations is the fact
thatsave for the situation and matters contemplated in Sec. 25,
Art. XVIII of the Constitution[46]when a treaty is required, the
Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What
the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete
the ratification process.
Petitioners reliance on Adolfo[47] is misplaced, said case being
inapplicable owing to different factual milieus. There, the Court
held that an executive agreement cannot be used to amend a duly
ratified and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the concurrence of the
Senate for its ratification may not be used to amend a treaty that,
under the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty, purportedly
being subject to amendment by an executive agreement, does not
obtain under the premises.

and void insofar as it unduly restricts the ICCs jurisdiction and

infringes upon the effectivity of the Rome Statute. Petitioner posits
that theAgreement was constituted solely for the purpose of
providing individuals or groups of individuals with immunity from
the jurisdiction of the ICC; and such grant of immunity through
non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that
state parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome
Statute is to ensure that those responsible for the worst possible
crimes are brought to justice in all cases, primarily by states, but
as a last resort, by the ICC; thus, any agreementlike the nonsurrender agreementthat precludes the ICC from exercising its
complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome
Statute.

Considering the above discussion, the Court need not belabor at

length the third main issue raised, referring to the validity and
effectivity of the Agreement without the concurrence by at least
two-thirds of all the members of the Senate. The Court has,
inEastern
Sea
Trading,[48] as
reiterated
in Bayan,[49] given
recognition to the obligatory effect of executive agreements
without the concurrence of the Senate:

Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by
the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as
signed. Adding a nullifying ingredient to the Agreement, according
to petitioner, is the fact that it has an immoral purpose or is
otherwise at variance with a priorly executed treaty.

x x x [T]he right of the Executive to enter into binding

agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.
From the earliest days of our history, we have entered
executive agreements covering such subjects as
commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously
questioned by our courts.

Contrary to petitioners pretense, the Agreement does not

contravene or undermine, nor does it differ from, the Rome
Statute.Far from going against each other, one complements the
other. As a matter of fact, the principle of complementarity
underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC
is to be complementary to national criminal jurisdictions [of the
signatory states].[54] Art. 1 of the Rome Statute pertinently
provides:
Article 1

The Agreement Not in Contravention of the Rome Statute

The Court
It
is
the
petitioners
next
contention
that
the Agreement undermines the establishment of the ICC and is null

66
An International
Crimininal
Court (the
Court) is hereby established. It x x x shall have
the power to exercise its jurisdiction over
persons for the most serious crimes of international
concern, as referred to in this Statute, and shall
be complementary to national criminal
jurisdictions. The jurisdiction and functioning of
the Court shall be governed by the provisions of
this Statute. (Emphasis ours.)

tending to impair the value of a treaty, e.g., the Rome Statutehas

to be rejected outright. For nothing in the provisions of
theAgreement, in relation to the Rome Statute, tends to diminish
the efficacy of the Statute, let alone defeats the purpose of the
ICC.Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person,
should the process require the requested state to perform an act
that would violate some international agreement it has entered
into.We refer to Art. 98(2) of the Rome Statute, which reads:
Article 98

Significantly, the sixth preambular paragraph of the Rome Statute

declares that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes. This
provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state
where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.
Of particular note is the application of the principle of ne
bis in idem[56] under par. 3 of Art. 20, Rome Statute, which again
underscores the primacy of the jurisdiction of a state vis-a-vis that
of the ICC. As far as relevant, the provision states that no person
who has been tried by another court for conduct x x x [constituting
crimes within its jurisdiction] shall be tried by the [International
Criminal] Court with respect to the same conduct x x x.
The foregoing provisions of the Rome Statute, taken
collectively, argue against the idea of jurisdictional conflict
between thePhilippines, as party to the non-surrender agreement,
and the ICC; or the idea of the Agreement substantially impairing
the value of the RPs undertaking under the Rome Statute. Ignoring
for a while the fact that the RP signed the Rome Statute ahead of
theAgreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP,
over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when
the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat
the RP, by entering into the Agreement, violated its duty required
by the imperatives of good faith and breached its commitment
under the Vienna Convention[57] to refrain from performing any act

Cooperation with respect to waiver of immunity

and consent to surrender
xxxx
2. The Court may not proceed with a
request for surrender which would require the
requested State to act inconsistently with its
obligations under international agreements
pursuant to which the consent of a sending
State is required to surrender a person of that
State to the Court, unless the Court can first
obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable
difference between a State-Party and a signatory to a treaty. Under
the Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refrain from acts which would defeat the object and
purpose of a treaty;[58] whereas a State-Party, on the other hand, is
legally obliged to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of
ratification by the Senate. Thus, it is only obliged to refrain from
acts which would defeat the object and purpose of the Rome
Statute. Any argument obliging the Philippines to follow any
provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with nonsurrender agreements are prevented from meeting their

67
obligations under the Rome Statute, specifically Arts. 27, 86, 89
and 90, must fail. These articles are only legally binding upon
State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that
the Agreement is not incompatible with the Rome Statute.
Specifically, Art. 90(4) provides that [i]f the requesting State is a
State not Party to this Statute the requested State, if it is not under
an international obligation to extradite the person to the
requesting State, shall give priority to the request for surrender
from the Court. x x x In applying the provision, certain undisputed
facts should be pointed out: first, the US is neither a State-Party
nor a signatory to the Rome Statute; and second, there is an
international
agreement
between
the US and
the Philippines regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a
State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when
one of the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement,
abdicated its sovereignty by bargaining away the jurisdiction of the
ICC to prosecute US nationals, government officials/employees or
military personnel who commit serious crimes of international
concerns in the Philippines. Formulating petitioners argument a bit
differently, the RP, by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of
the ICC for erring Americans committing international crimes in the
country.
We are not persuaded. As it were, the Agreement is but a form of
affirmance and confirmance of the Philippines national criminal
jurisdiction. National criminal jurisdiction being primary, as
explained above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the
ICC. Thus, the Philippines may decide to try persons of the US, as
the term is understood in the Agreement, under our national
criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US persons committing
high crimes in the country and defer to the secondary criminal

jurisdiction of the ICC over them. As to persons of the US whom the

Philippines refuses to prosecute, the country would, in effect,
accord discretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to the
referral of the matter to the ICC for trial. In the same breath,
theUS must extend the same privilege to the Philippines with
respect to persons of the RP committing high crimes
within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection
to the Philippines agreeing to undertake the things set forth in
the Agreement. Surely, one State can agree to waive jurisdictionto
the extent agreed uponto subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the
Court wrote in Nicolas v. Romulo[59]a case involving the
implementation of the criminal jurisdiction provisions of the RP-US
Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody),
in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and
members of the armed forces contingents of a
foreign State allowed to enter another States
territory. x x x
To be sure, the nullity of the subject non-surrender agreement
cannot be predicated on the postulate that some of its provisions
constitute a virtual abdication of its sovereignty. Almost every time
a state enters into an international agreement, it voluntarily sheds
off part of its sovereignty. The Constitution, as drafted, did not
envision a reclusive Philippines isolated from the rest of the
world. It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.[60]
By their nature, treaties and international agreements actually
have a limiting effect on the otherwise encompassing and absolute
nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial
surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same

68
privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of
international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.
[61]
Such waiver does not amount to an unconstitutional diminution
or deprivation of jurisdiction of Philippine courts.[62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab
initio for imposing immoral obligations and/or being at variance
with allegedly universally recognized principles of international
law. The immoral aspect proceeds from the fact that
theAgreement, as petitioner would put it, leaves criminals immune
from responsibility for unimaginable atrocities that deeply shock
the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier
position, which, as already discussed, contends that the RP, by
entering into the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations under the
Rome Statute, contrary to international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that
the non-surrender agreement, as aptly described by the Solicitor
General, is an assertion by the Philippines of its desire to try and
punish crimes under its national law. x x x The agreement is a
recognition of the primacy and competence of the countrys
judiciary to try offenses under its national criminal laws and
dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing
high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have
committed acts penalized under the Rome Statute can be
prosecuted and punished in the Philippines or in the US; or with the
consent of the RP or the US, before the ICC, assuming, for the
nonce, that all the formalities necessary to bind both countries to
the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either

party of individuals to international tribunals, like the ICC, without

the consent of the other party, which may desire to prosecute the
crime under its existing laws. With the view we take of things,
there is nothing immoral or violative of international law concepts
in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement. And without specifically saying so,
petitioner would argue that the non-surrender agreement was
executed by the President, thru the DFA Secretary, in grave abuse
of discretion.
The Court need not delve on and belabor the first portion of the
above posture of petitioner, the same having been discussed at
length earlier on. As to the second portion, We wish to state
that petitioner virtually faults the President for performing, through
respondents, a task conferred the President by the Constitutionthe
power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the
President, as head of state and government, is the sole organ and
authority in the external affairs of the country.[65] The Constitution
vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required
concurrence votes of the Senate. But as earlier indicated,
executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence,
her conduct in the external affairs of the nation is, as Bayan would
put it, executive altogether. The right of the President to enter into
or ratify binding executive agreements has been confirmed by long
practice.[66]
In thus agreeing to conclude the Agreement thru E/N BFO-028-03,
then President Gloria Macapagal-Arroyo, represented by the
Secretary of Foreign Affairs, acted within the scope of the authority
and discretion vested in her by the Constitution. At the end of the
day, the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty
and exercise a prerogative that pertains to her office.

69
While the issue of ratification of the Rome Statute is not
determinative of the other issues raised herein, it may perhaps be
pertinent to remind all and sundry that about the time this petition
was interposed, such issue of ratification was laid to rest
inPimentel, Jr. v. Office of the Executive Secretary.[67] As the Court
emphasized in said case, the power to ratify a treaty, the Statute in
that instance, rests with the President, subject to the concurrence
of the Senate, whose role relative to the ratification of a treaty is
limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his
or her prerogative to refuse to submit a treaty to the Senate; or
having secured the latters consent to the ratification of the treaty,
refuse to ratify it.[68] This prerogative, the Court hastened to add, is
the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring
intervening
events,
then,
the Philippines remains to be just a signatory to the Rome
Statute. Under Art. 125[69] thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as
the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law
Republic Act No. (RA) 9851, otherwise known as the Philippine Act
on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity. Sec. 17 of RA 9851, particularly
the second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another
court or international tribunal is already conducting the
investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or
extradite
suspected
or
accused
persons
in
the Philippines to the appropriate international
court, if any, or to another State pursuant to the
applicable extradition laws and treaties. (Emphasis
supplied.)
A view is advanced that the Agreement amends existing municipal
laws on the States obligation in relation to grave crimes against

the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes
defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not
decide to prosecute a foreign national for violations of RA 9851,
the Philippines has only two options, to wit: (1) surrender the
accused to the proper international tribunal; or (2) surrender the
accused to another State if such surrender is pursuant to the
applicable extradition laws and treaties. But the Philippines may
exercise these options only in cases where another court or
international tribunal is already conducting the investigation or
undertaking the prosecution of such crime; otherwise,
the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.
Posing the situation of a US national under prosecution by an
international
tribunal
for
any
crime
under
RA
9851,
thePhilippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national
here. The view asserts that this option of the Philippines under Sec.
17 of RA 9851 is not subject to the consent of the US, and any
derogation of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option, requires an
amendatory law. In line with this scenario, the view strongly argues
that the Agreement prevents the Philippineswithout the consent of
the USfrom surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect amends
Sec. 17 of RA 9851. Consequently, the view is strongly impressed
that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be
implemented through an extradition law or a treaty with the
corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II
of the Constitution, where the Philippines adopts, as a national
policy, the generally accepted principles of international law
as part of the law of the land, the Court is further impressed to
perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies principles
of law which constitute customary international law or custom and

70
for which reason it assumes the status of an enforceable domestic
law in the context of the aforecited constitutional provision. As a
corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement,
which, as an exclusive act of the executive branch, can only
implement, but cannot amend or repeal, an existing
law. The Agreement, so the argument goes, seeks to frustrate the
objects of the principles of law or alters customary rules embodied
in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced
considers the Agreement inefficacious, unless it is embodied in a
treaty duly ratified with the concurrence of the Senate, the theory
being that a Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as
constitutive of enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus taken. For one, we
find that the Agreement does not amend or is repugnant to RA
9851. For another, the view does not clearly state what precise
principles of law, if any, the Agreement alters. And for a third, it
does not demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in the
Rome Statute.
Far from it, as earlier explained, the Agreement does not
undermine the Rome Statute as the former merely reinforces the
primacy of the national jurisdiction of the US and the Philippines in
prosecuting criminal offenses committed by their respective
citizens and military personnel, among others. The jurisdiction of
the ICC pursuant to the Rome Statute over high crimes indicated
thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes
against international humanitarian law, genocide and other crimes
against humanity;[70] (2) provides penal sanctions and criminal
liability for their commission;[71] and (3) establishes special courts
for the prosecution of these crimes and for the State to exercise
primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a
proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17,
RA 9851 as requiring the Philippine State to surrender to the
proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary
jurisdiction to prosecute such persons. This view is not entirely
correct,
for
the
above
quoted
proviso
clearly
provides discretion to the Philippine State on whether to
surrender or not a person accused of the crimes under RA
9851. The statutory proviso uses the word may. It is settled
doctrine in statutory construction that the word may denotes
discretion, and cannot be construed as having mandatory effect.
[73]
Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is
mandatorily required when the Philippines does not exercise its
primary jurisdiction in cases where another court or international
tribunal is already conducting the investigation or undertaking the
prosecution of such crime, still, the tenor of the Agreement is not
repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides
that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can
already be considered a treaty following this Courts decision
in Nicolas
v.
Romulo[74] which
cited Weinberger
v.
Rossi.
[75]
In Nicolas, We held that an executive agreement is a treaty
within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United States.[76]
Likewise, the Philippines and the US already have an existing
extradition treaty, i.e., RP-US Extradition Treaty, which was
executed on November 13, 1994. The pertinent Philippine law, on
the other hand, is Presidential Decree No. 1069, issued on January
13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec. 17
of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In
that case, several petitions were filed questioning the power of the
President to enter into foreign loan agreements. However, before
the petitions could be resolved by the Court, the Office of the
Solicitor General filed a Manifestation and Motion averring that the
Philippine Government decided not to continue with the ZTE
National Broadband Network Project, thus rendering the petition
moot. In resolving the case, the Court took judicial notice of the act

71
of the executive department of the Philippines (the President) and
found the petition to be indeed moot. Accordingly, it dismissed the
petitions.

Armed Forces of the United States or a national of the

United States (as defined in Section 101 of the Immigration
and Nationality Act).

In his dissent in the abovementioned case, Justice Carpio discussed

the legal implications of an executive agreement. He stated that an
executive agreement has the force and effect of law x x x [it]
cannot amend or repeal prior laws.[78] Hence, this argument finds
no application in this case seeing as RA 9851 is a subsequent law,
not a prior one. Notably, this argument cannot be found in the ratio
decidendi of the case, but only in the dissenting opinion.

(c) Definition As used in this Section the term war crime

means any conduct

The view further contends that the RP-US Extradition Treaty is

inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of
the RP-US Extradition Treaty, [a]n offense shall be an extraditable
offense if it is punishable under the laws in both Contracting
Parties x x x,[79] and thereby concluding that while the Philippines
has criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against
humanity, there is no similar legislation in the US. It is further
argued that, citing U.S. v. Coolidge, in the US, a person cannot be
tried in the federal courts for an international crime unless
Congress adopts a law defining and punishing the offense.

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex

to the Hague Convention IV, Respecting the Laws and
Customs of War on Land, signed 18 October 1907;

This view must fail.

On the contrary, the US has already enacted legislation punishing
the high crimes mentioned earlier. In fact, as early as October
2006, the US enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States Code Annotated
(USCA) provides for the criminal offense of war crimes which is
similar to the war crimes found in both the Rome Statute and RA
9851, thus:
(a) Offense Whoever, whether inside or outside the
United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined
under this title or imprisoned for life or any term of years,
or both, and if death results to the victim, shall also be
subject to the penalty of death.
(b) Circumstances The circumstances referred to in
subsection (a) are that the person committing such war
crime or the victim of such war crime is a member of the

1) Defined as a grave breach in any of the international

conventions signed at Geneva 12 August 1949, or any
protocol to such convention to which the United States is a
party;

(3) Which constitutes a grave breach of common Article 3

(as defined in subsection [d]) when committed in the
context of and in association with an armed conflict not of
an international character; or
(4) Of a person who, in relation to an armed conflict and
contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II
as amended on 3 May 1996), when the United States is a
party to such Protocol, willfully kills or causes serious injury
to civilians.[80]
Similarly, in December 2009, the US adopted a law that
criminalized genocide, to wit:
1091. Genocide
(a)
Basic Offense Whoever, whether in the time of
peace or in time of war and with specific intent to destroy,
in whole or in substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental
faculties of members of the group through drugs, torture,
or similar techniques;

72
(4) subjects the group to conditions of life that are
intended to cause the physical destruction of the group in
whole or in part;
(5) imposes measures intended to prevent births within
the group; or
(6) transfers by force children of the group to another
group;
shall be punished as provided in subsection (b). [81]
Arguing further, another view has been advanced that the current
US laws do not cover every crime listed within the jurisdiction of
the ICC and that there is a gap between the definitions of the
different crimes under the US laws versus the Rome Statute. The
view used a report written by Victoria K. Holt and Elisabeth W.
Dallas, entitled On Trial: The US Military and the International
Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not
have any weight or value under international law. Article 38 of the
Statute of the International Court of Justice (ICJ) lists the sources of
international law, as follows: (1) international conventions, whether
general or particular, establishing rules expressly recognized by
the contesting states; (2) international custom, as evidence of a
general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of
Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law. The report
does not fall under any of the foregoing enumerated sources. It
cannot even be considered as the teachings of highly qualified
publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or
academic writers.[82] It has not been shown that the authors[83] of
this report are highly qualified publicists.

Genocide
For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm
to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole
or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the
group to another group.

Article 8
War Crimes
2. For the purpose of this Statute, war
crimes means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949, namely,
any of the following acts against persons
or property protected under the provisions
of the relevant Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework
of international law, namely, any of the
following acts:
xxxx
Assuming arguendo that the report has weight, still, the perceived
(c) In the case of an armed conflict not of
gaps in the definitions of the crimes are nonexistent. To highlight,
an international character, serious
the table below shows the definitions of genocide and war crimes
violations of article 3 common to the four
under the Rome Statute vis--vis the definitions under US laws:
Geneva Conventions of 12 August 1949,
namely, any of the following acts
committed against persons taking no
Rome Statute
US Law active part in the hostilities, including
Article 6
1091. Genocide
members of armed forces who have laid

(a) Basic Offense Whoever, whether

of peace or in time of war and with s
to destroy, in whole or in substa
national, ethnic, racial or religious gr
(1) kills members of that group;
(2) causes serious bodily injury to
that group;
(3) causes the permanent impairm
mental faculties of members
through
drugs,
torture,
techniques;
(4) subjects the group to conditions
are intended to cause t
destruction of the group in
part;
(5) imposes measures intended to p
within the group; or
(6) transfers by force children of t
another group;
shall be punished as provided in subs
(a) Definition As used in this Sect
war crime means any conduct
(1) Defined as a grave breach i
international
conventions
at Geneva12 August 1949, or
to such convention to whic
States is a party;
(2) Prohibited by Article 23, 25,
the Annex to the Hague Co
Respecting the Laws and Cus
on Land, signed 18 October 19
(3) Which constitutes a grave
common Article 3 (as
subsection [d][85]) when comm
context of and in associat
armed conflict not of an
character; or
(4) Of a person who, in relation
conflict and contrary to the
the Protocol on Prohibitions or
on the Use of Mines, Boob
Other Devices as amended a
3 May 1996 (Protocol II as am

73
down their arms and those placed hors de
combat by sickness, wounds, detention or
any other cause:
xxxx
(d) Paragraph 2 (c) applies to armed
conflicts not of an international character
and thus does not apply to situations of
internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence
or other acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not
of an international character, within the
established framework of international law,
namely, any of the following acts: x x x.

May 1996), when theInternational

United States law
is a is part of our law, and must be
ascertained
by the courts of justice of
party to such Protocol,
willfully and
kills administered
or
appropriate
causes serious injury to
civilians. jurisdiction as often as questions of right
depending upon it are duly presented for their
determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of
jurists and commentators who by years of labor, research,
and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such
works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law
ought to be, but for the trustworthy evidence of what the
law really is.[90] (Emphasis supplied.)

Evidently, the gaps pointed out as to the definition of the crimes

are not present. In fact, the report itself stated as much, to wit:
Few believed there were wide differences between
the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice
that would expose US personnel to the Court.
Since US military lawyers were instrumental in
drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the
crimes were consistent with those outlined in the
UCMJ and gave strength to complementarity for
the US. Small areas of potential gaps between the
UCMJ and the Rome Statute, military experts
argued, could be addressed through existing
military laws.[87] x x x
The report went on further to say that [a]ccording to those
involved, the elements of crimes laid out in the Rome Statute have
been part of US military doctrine for decades.[88] Thus, the
argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation,
the US notably follows the doctrine of incorporation. As early as
1900, the esteemed Justice Gray in The Paquete Habana[89] case
already held international law as part of the law of the US, to wit:

Thus, a person can be tried in the US for an international

crime despite the lack of domestic legislation. The cited
ruling inU.S. v. Coolidge,[91] which in turn is based on the
holding in U.S. v. Hudson,[92] only applies to common law
and not to the law of nations or international law. [93] Indeed,
the Court in U.S. v. Hudson only considered the question,
whether the Circuit Courts of theUnited States can exercise
a common law jurisdiction in criminal cases.[94] Stated
otherwise, there is no common law crime in theUS but this
is considerably different from international law.
The US doubtless recognizes international law as part of the law of
the land, necessarily including international crimes, even without
any local statute.[95] In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of
a local statute criminalizing it as such. So it was that in Ex Parte
Quirin[96] the US Supreme Court noted that [f]rom the very
beginning of its history this Court has recognized and applied the
law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals. [97] It went on further
to explain that Congress had not undertaken the task of codifying
the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of
such offenses has not itself undertaken to codify that
branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all

74
the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of
nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the offense
since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the
reference in the 15th Article of War to offenders or offenses
that x x x by the law of war may be triable by such military
commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses
which are defined as such by the law of war x x x, and
which may constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes
against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes
have attained the status of jus cogens.[99]
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ. [100] It is defined
as the general and consistent practice of states recognized and
followed by them from a sense of legal obligation. [101] In order to
establish the customary status of a particular norm, two elements
must concur: State practice, the objective element; andopinio juris
sive necessitates, the subjective element.[102]
State practice refers to the continuous repetition of the same or
similar kind of acts or norms by States. [103] It is demonstrated upon
the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration.[104]While, opinio juris,
the psychological element, requires that the state practice or norm
be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law
requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus
cogens norm holds the highest hierarchical position among all
other customary norms and principles. [107] As a result, jus
cogens norms are deemed peremptory and non-derogable.
[108]
When applied to international crimes, jus cogens crimes have
been deemed so fundamental to the existence of a just

international legal order that states cannot derogate from them,

even by agreement.[109]
These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., any state may exercise jurisdiction over an
individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction
exists.[110] The rationale behind this principle is that the crime
committed is so egregious that it is considered to be committed
against all members of the international community [111] and thus
granting every State jurisdiction over the crime. [112]
Therefore, even with the current lack of domestic legislation on the
part of the US, it still has both the doctrine of incorporation and
universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an
international tribunal, found in the Rome Statute is notdeclaratory
of customary international law.
The first element of customary international law, i.e., established,
widespread, and consistent practice on the part of States, [113] does
not, under the premises, appear to be obtaining as reflected in this
simple reality: As of October 12, 2010, only 114 [114]States have
ratified the Rome Statute, subsequent to its coming into force eight
(8) years earlier, or on July 1, 2002. The fact that 114 States out of
a total of 194[115] countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or not the
perceived principles contained in the Statute have attained the
status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the
urgency of establishing international criminal courts envisioned in
the Rome Statute. Lest it be overlooked, the Philippines, judging by
the action or inaction of its top officials, does not even feel bound
by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the
Statute, but the treaty has not been transmitted to the Senate for
the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:
Custom or customary international law means a general
and consistent practice of states followed by them from a

75
sense of legal obligation [opinio juris] x x x. This statement
contains the two basic elements of custom: the material
factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom
is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the
practice. x x x
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine why
states behave the way they do. Do states behave the
way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy?Opinio
juris, or the belief that a certain form of behavior is
obligatory, is what makes practice an international
rule. Without it, practice is not law.[116] (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone
prevalent practice, among the different countries in the world that
the prosecution of internationally recognized crimes of genocide,
etc. should be handled by a particular international criminal
court.
Absent the widespread/consistent-practice-of-states factor, the
second or the psychological element must be deemed nonexistent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as
a matter of settled and consistent practice, in a certain

manner. This implicitly requires belief that the practice in question

is rendered obligatory by the existence of a rule of law requiring it.
[117]
Like the first element, the second element has likewise not
been shown to be present.
Further, the Rome Statute itself rejects the concept of universal
jurisdiction over the crimes enumerated therein as evidenced by it
requiring State consent.[118] Even further, the Rome Statute
specifically
and
unequivocally
requires
that: This Statute
issubject to ratification, acceptance or approval by signatory
States.[119] These clearly negate the argument that such has
already attained customary status.
More importantly, an act of the executive branch with a foreign
government must be afforded great respect. The power to enter
into executive agreements has long been recognized to be lodged
with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, [t]he power to
enter into an executive agreement is in essence an executive
power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. [120] The
rationale behind this principle is the inviolable doctrine of
separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear contravention
of the law, courts should exercise utmost caution in declaring any
executive agreement invalid.
In light of the above consideration, the position or view
that the challenged RP-US Non-Surrender Agreement ought to be in
the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and
prohibition is hereby DISMISSED for lack of merit. No costs.
SO ORDERED.

76
G.R. No. 204819
April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for
themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC.
[ALFI], represented by its President, Maria Concepcion S.
Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez
& Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A.
Tansingco & Carol Anne C. Tansingco for themselves and on
behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C.
Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta
for themselves and on behalf of their minor children,
Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C. Castor for
themselves and on behalf of their minor children, Renz
Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor
& Raphael C. Castor, Spouses Alexander R. Racho & Zara Z.
Racho for themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho
& Manolo Racho, Spouses Alfred R. Racho & Francine V.
Racho for themselves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho,
Chessie Racho & Laura Racho, Spouses David R. Racho &
Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of
her minor children Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R .
Laws & Katrina R. Laws,Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary,
Department of Social Welfare and Development, HON.
MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON WOMEN,
represented by its Chairperson, Remedios lgnacio-Rikken,
THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE
OF PROVINCES OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez,
and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary,
Department of Education; and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr.
Nestor B. Lumicao, M.D., as President and in his personal
capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board
and in his personal capacity, ROSEMARIE R. ALENTON,
IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY
G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD,

77
Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Health; HON.
ARMIN A. LUISTRO, Secretary, Department of Education and
HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF
THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE
H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN
A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein
represented by its National President, Atty. Ricardo M .
Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo
B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel
J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal,
Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr.,
Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government,
HON. CORAZON J. SOLIMAN, Secretary, Department of
Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and
Development Authority, HON. SUZETTE H. LAZO, DirectorGeneral, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and

THE BOARD OF COMMISSIONERS, Philippine Commission on

Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADOLUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS
ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA
COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary of the Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary
of the Department of Health; HON. ARMIN A. LUISTRO,
Secretary of the Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD
& ALA F. PAGUIA, for themselves, their Posterity, and the
rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by
Loma Melegrito, as Executive Director, and in her personal
capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES,
RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG,
RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education and
HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

78
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA
CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
ANTONIA EMMA R. ROXAS and LOTA LATGUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON.
MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N.
RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
KASHIM, Petitioners,
vs.

HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.

ENRIQUE T. ONA, Secretary of the Department of Health,
and HON. ARMIN A. LUISTRO,Secretary of the Department
of Budget and Management,Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs , and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's
emergence as a developed country, leaving our people
beleaguered in a state of hunger, illiteracy and unemployment.
While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor,
but every member of society. The government continues to tread
on a trying path to the realization of its very purpose, that is, the
general welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet of a
representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is
closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an
inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate. Passive,
yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the
most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the
issues of population growth control, abortion and contraception. As
in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in
various media. From television debates2 to sticker
campaigns,3 from rallies by socio-political activists to mass
gatherings organized by members of the clergy4 - the clash
between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division
in every level of the society. Despite calls to withhold support

79
thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of
2012 (RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law,
challengers from various sectors of society came knocking on the
doors of the Court, beckoning it to wield the sword that strikes
down constitutional disobedience. Aware of the profound and
lasting impact that its decision may produce, the Court now faces
the iuris controversy, as presented in fourteen (14) petitions and
two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses
Attys. James M. Imbong and Lovely Ann C. Imbong, in their
personal capacities as citizens, lawyers and taxpayers and
on behalf of their minor children; and the Magnificat Child
Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the
Family Foundation Philippines, Inc., through its president,
Atty. Maria Concepcion S. Noche7 and several others8 in
their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family
and Life Visayas, Inc., and Valeriano S. Avila, in their
capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve
Life Cagayan De Oro City, Inc.,11 Rosevale Foundation,
Inc.,12 a domestic, privately-owned educational institution,
and several others,13 in their capacities as citizens (Serve
Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity
as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo
Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the
Philippine Alliance of Xseminarians Inc.,18 and several
others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several
others,21 in their capacities as citizens and taxpayers
(Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses
Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia,
in their capacities as citizens, taxpayers and on behalf of

those yet unborn. Atty. Alan F. Paguia is also proceeding in

his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life
Philippines Foundation Inc.24 and several others,25 in their
capacities as citizens and taxpayers and on behalf of its
associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint
Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita BorromeoGarcia, Stella Acedera, and Berteni Catalufia Causing, in
their capacities as citizens, taxpayers and members of the
Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John
Walter B. Juat and several others,29 in their capacities as
citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by
Couples for Christ Foundation, Inc. and several others, 31 in
their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah
and Abdulhussein M. Kashim in their capacities as citizens
and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S.
Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang
Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are
assailing the constitutionality of RH Law on the following
GROUNDS:
The RH Law violates the right to life of the unborn.
According to the petitioners, notwithstanding its declared
policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives,
intra-uterine devices and injectables which are abortives,
in violation of Section 12, Article II of the Constitution
which guarantees protection of both the life of the mother
and the life of the unborn from conception.35
The RH Law violates the right to health and the right to
protection against hazardous products. The petitioners
posit that the RH Law provides universal access to
contraceptives which are hazardous to one's health, as it
causes cancer and other health problems.36
The RH Law violates the right to religious freedom. The
petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes

80
the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds
for purposes that are believed to be contrary to their
beliefs is included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens conscientious
objectors of criminal prosecution, imprisonment and other forms of
punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors;
and 2] to provide full and correct information on reproductive
health programs and service, although it is against their religious
beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and
Regulations of the RH Law (RH-IRR),39 provides that skilled health
professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of
mandatory sex education in schools should not be allowed as it is
an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious
freedom is not absolute, they argue that the RH Law fails to satisfy
the "clear and present danger test" and the "compelling state
interest test" to justify the regulation of the right to free exercise of
religion and the right to free speech.42
The RH Law violates the constitutional provision on
involuntary servitude. According to the petitioners, the RH
Law subjects medical practitioners to involuntary servitude
because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro
bona services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of
punishment.43
The petitioners explain that since a majority of patients are
covered by PhilHealth, a medical practitioner would effectively be
forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public
would no longer be able to avail of the practitioners services. 44
The RH Law violates the right to equal protection of the
law. It is claimed that the RH Law discriminates against the
poor as it makes them the primary target of the

government program that promotes contraceptive use. The

petitioners argue that, rather than promoting reproductive
health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of
the poor.45
The RH Law is "void-for-vagueness" in violation of the due
process clause of the Constitution. In imposing the penalty
of imprisonment and/or fine for "any violation," it is vague
because it does not define the type of conduct to be
treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law
violates the right to due process by removing from them (the
people) the right to manage their own affairs and to decide what
kind of health facility they shall be and what kind of services they
shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a
person to explain a full range of family planning methods is
plainly to curtail his right to expound only his own
preferred way of family planning. The petitioners note that
although exemption is granted to institutions owned and
operated by religious groups, they are still forced to refer
their patients to another healthcare facility willing to
perform the service or procedure.48
The RH Law intrudes into the zone of privacy of one's
family protected by the Constitution. It is contended that
the RH Law providing for mandatory reproductive health
education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who
will undergo reproductive health procedure, the RH Law forsakes
any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall
well-being of their family. In the same breath, it is also claimed that
the parents of a child who has suffered a miscarriage are deprived
of parental authority to determine whether their child should use
contraceptives.50
The RH Law violates the constitutional principle of nondelegation of legislative authority. The petitioners question
the delegation by Congress to the FDA of the power to
determine whether a product is non-abortifacient and to be
included in the Emergency Drugs List (EDL).51

81
The RH Law violates the one subject/one bill rule
provision under Section 26( 1 ), Article VI of the
Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local
Government Units (LGUs) and the Autonomous Region of
Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local
government level and the ARMM, infringes upon the
powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their
respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the
Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr.
Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive Health
(C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De
Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia
Juliana S. Cayetano was also granted leave to intervene. 61
The respondents, aside from traversing the substantive arguments
of the petitioners, pray for the dismissal of the petitions for the
principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2]
some petitioners lack standing to question the RH Law; and 3] the
petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of
the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments
raised, the Court issued the Status Quo Ante Order (SQAO),
enjoining the effects and implementation of the assailed legislation
for a period of one hundred and twenty (120) days, or until July 17,
2013.62
On May 30, 2013, the Court held a preliminary conference with the
counsels of the parties to determine and/or identify the pertinent
issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and
23, 2013, and on August 6, 13, and 27, 2013, the cases were heard
on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63

Thereafter, the Court directed the parties to submit their respective

memoranda within sixty (60) days and, at the same time posed
several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed
the sale, dispensation and distribution of contraceptive drugs and
devices. As far back as June 18, 1966, the country enacted R.A. No.
4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices." Although
contraceptive drugs and devices were allowed, they could not be
sold, dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical
practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anticonceptional substances and devices." Under Section 37 thereof, it
was provided that "no drug or chemical product or device capable
of provoking abortion or preventing conception as classified by the
Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN
Declaration on Population, which recognized that the population
problem should be considered as the principal element for longterm economic development, enacted measures that promoted
male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved
on August 16, 1971, entitled "An Act Establishing a National Policy
on Population, Creating the Commission on Population and for
Other Purposes. " The law envisioned that "family planning will be
made part of a broad educational program; safe and effective
means will be provided to couples desiring to space or limit family
size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E .
Marcos issued Presidential Decree. (P.D.) No. 79,68 dated December
8, 1972, which, among others, made "family planning a part of a
broad educational program," provided "family planning services as
a part of over-all health care," and made "available all acceptable
methods of contraception, except abortion, to all Filipino citizens
desirous of spacing, limiting or preventing pregnancies."

82
Through the years, however, the use of contraceptives and family
planning methods evolved from being a component of
demographic management, to one centered on the promotion of
public health, particularly, reproductive health.69 Under that policy,
the country gave priority to one's right to freely choose the method
of family planning to be adopted, in conformity with its adherence
to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the
country enacted R.A. No. 9710 or "The Magna Carta for Women, "
which, among others, mandated the State to provide for
comprehensive health services and programs for women, including
family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the
country kept on galloping at an uncontrollable pace. From a paltry
number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92
million in 2010.72 The executive and the legislative, thus, felt that
the measures were still not adequate. To rein in the problem, the
RH Law was enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full range of
modem family planning methods, and to ensure that its objective
to provide for the peoples' right to reproductive health be
achieved. To make it more effective, the RH Law made it
mandatory for health providers to provide information on the full
range of modem family planning methods, supplies and services,
and for schools to provide reproductive health education. To put
teeth to it, the RH Law criminalizes certain acts of refusals to carry
out its mandates.
Stated differently, the RH Law is an enhancement measure to
fortify and make effective the current laws on contraception,
women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be
declared unconstitutional. Petitioner ALFI, in particular, argues that
the government sponsored contraception program, the very
essence of the RH Law, violates the right to health of women and
the sanctity of life, which the State is mandated to protect and
promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained."73 It
explains:
x x x. The instant Petition does not question contraception and
contraceptives per se. As provided under Republic Act No. 5921
and Republic Act No. 4729, the sale and distribution of

contraceptives are prohibited unless dispensed by a prescription

duly licensed by a physician. What the Petitioners find deplorable
and repugnant under the RH Law is the role that the State and its
agencies - the entire bureaucracy, from the cabinet secretaries
down to the barangay officials in the remotest areas of the country
- is made to play in the implementation of the contraception
program to the fullest extent possible using taxpayers' money. The
State then will be the funder and provider of all forms of family
planning methods and the implementer of the program by ensuring
the widespread dissemination of, and universal access to, a full
range of family planning methods, devices and supplies. 74
ISSUES
After a scrutiny of the various arguments and contentions of the
parties, the Court has synthesized and refined them to the
following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of
judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its
implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the
OSG asserts that it should submit to the legislative and political
wisdom of Congress and respect the compromises made in the

83
crafting of the RH Law, it being "a product of a majoritarian
democratic process"75 and "characterized by an inordinate amount
of transparency."76 The OSG posits that the authority of the Court
to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the
constitutional policies and positive norms with the political
departments, in particular, with Congress.77 It further asserts that
in view of the Court's ruling in Southern Hemisphere v. AntiTerrorism Council,78 the remedies of certiorari and prohibition
utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it
cannot prosper considering that the assailed law has yet to be
enforced and applied to the petitioners, and that the government
has yet to distribute reproductive health devices that are abortive.
It claims that the RH Law cannot be challenged "on its face" as it is
not a speech-regulating measure.80
In many cases involving the determination of the constitutionality
of the actions of the Executive and the Legislature, it is often
sought that the Court temper its exercise of judicial power and
accord due respect to the wisdom of its co-equal branch on the
basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of
government, which obtains not through express provision but by
actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere. 81
Thus, the 1987 Constitution provides that: (a) the legislative power
shall be vested in the Congress of the Philippines; 82 (b) the
executive power shall be vested in the President of the
Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and
in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the
doctrine of separation of powers which imposes upon the courts
proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily,
the policy is a harmonious blend of courtesy and caution. 86
It has also long been observed, however, that in times of social
disquietude or political instability, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely

obliterated.87 In order to address this, the Constitution impresses

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

84
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial
review is the chief, indeed the only, medium of participation - or
instrument of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the Court does
not have the unbridled authority to rule on just any and every
claim of constitutional violation. Jurisprudence is replete with the
rule that the power of judicial review is limited by four exacting
requisites, viz : (a) there must be an actual case or controversy; (b)
the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case. 96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not
present any actual case or controversy because the RH Law has
yet to be implemented.97 They claim that the questions raised by
the petitions are not yet concrete and ripe for adjudication since no
one has been charged with violating any of its provisions and that
there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.99 The rule is that courts do not sit
to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the

pleadings must show an active antagonistic assertion of a legal

right, on the one hand, and a denial thereof, on the other; that is, it
must concern a real, tangible and not merely a theoretical question
or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result
of the act complained of102
In The Province of North Cotabato v. The Government of the
Republic of the Philippines,103 where the constitutionality of an
unimplemented Memorandum of Agreement on the Ancestral
Domain (MOA-AD) was put in question, it was argued that the Court
has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court ruled that
the fact of the law or act in question being not yet effective does
not negate ripeness. Concrete acts under a law are not necessary
to render the controversy ripe. Even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing
rules have already taken effect and that budgetary measures to
carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated
earlier, when an action of the legislative branch is seriously alleged
to have infringed the Constitution, it not only becomes a right, but
also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because
medical practitioners or medical providers are in danger of being
criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other
benefits. They must, at least, be heard on the matter NOW.

85
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by
the subject petitions, contending that the RH Law cannot be
challenged "on its face" as it is not a speech regulating measure. 105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also
known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment. 106 These
include religious freedom, freedom of the press, and the right of
the people to peaceably assemble, and to petition the Government
for a redress of grievances.107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are
but component rights of the right to one's freedom of expression,
as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the
U.S. has been generally maintained, albeit with some
modifications. While this Court has withheld the application of
facial challenges to strictly penal statues,108 it has expanded its
scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental
rights.109 The underlying reason for this modification is simple. For
unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only to settle
actual controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have
seriously alleged that the constitutional human rights to life,
speech and religion and other fundamental rights mentioned above
have been violated by the assailed legislation, the Court has
authority to take cognizance of these kindred petitions and to
determine if the RH Law can indeed pass constitutional scrutiny. To
dismiss these petitions on the simple expedient that there exist no
actual case or controversy, would diminish this Court as a reactive
branch of government, acting only when the Fundamental Law has
been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file
their respective petitions. It contends that the "as applied

challenge" lodged by the petitioners cannot prosper as the assailed

law has yet to be enforced and applied against them, 111 and the
government has yet to distribute reproductive health devices that
are abortive.112
The petitioners, for their part, invariably invoke the
"transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions. 114
In relation to locus standi, the "as applied challenge" embodies the
rule that one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute grounded on a
violation of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party standing. 115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest." 116
In Coconut Oil Refiners Association, Inc. v. Torres, 117 the Court held
that in cases of paramount importance where serious constitutional
questions are involved, the standing requirement may be relaxed
and a suit may be allowed to prosper even where there is no direct
injury to the party claiming the right of judicial review. In the first
Emergency Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest
shared in common with the public.
With these said, even if the constitutionality of the RH Law may not
be assailed through an "as-applied challenge, still, the Court has
time and again acted liberally on the locus s tandi requirement. It
has accorded certain individuals standing to sue, not otherwise
directly injured or with material interest affected by a Government
act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion,

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waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the
public interest, albeit they may not have been directly injured by
the operation of a law or any other government act. As held in
Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance
of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the
well-entrenched principle that rules of procedure are not inflexible
tools designed to hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed. (Emphasis
supplied)
In view of the seriousness, novelty and weight as precedents, not
only to the public, but also to the bench and bar, the issues raised
must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life
and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the
issues of contraception and reproductive health have already
caused deep division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to
life of the mother and the unborn which is primarily at issue, the
Court need not wait for a life to be taken away before taking
action.
The Court cannot, and should not, exercise judicial restraint at this
time when rights enshrined in the Constitution are being imperilled
to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are
essentially petitions for declaratory relief over which the Court has
no original jurisdiction.120 Suffice it to state that most of the
petitions are praying for injunctive reliefs and so the Court would
just consider them as petitions for prohibition under Rule 65, over
which it has original jurisdiction. Where the case has far-reaching

implications and prays for injunctive reliefs, the Court may

consider them as petitions for prohibition under Rule 65. 121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law,
claiming that it violates Section 26(1 ), Article VI of the
Constitution,122 prescribing the one subject-one title rule. According
to them, being one for reproductive health with responsible
parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a
population control measure.123
To belittle the challenge, the respondents insist that the RH Law is
not a birth or population control measure,124and that the concepts
of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law,
the Court sees it as principally a population control measure. The
corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our
women and children healthy, it also promotes pregnancypreventing products. As stated earlier, the RH Law emphasizes the
need to provide Filipinos, especially the poor and the marginalized,
with access to information on the full range of modem family
planning products and methods. These family planning methods,
natural or modem, however, are clearly geared towards the
prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is
to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide prenatal and post-natal care as well. A large portion of the law,
however, covers the dissemination of information and provisions
on access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive health care services, methods,
devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the
whole idea of contraception pervades the entire RH Law. It is, in
fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the
RH Law loses its very foundation.127 As earlier explained, "the other
positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management
of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128

87
Be that as it may, the RH Law does not violate the one subject/one
bill rule. In Benjamin E. Cawaling, Jr. v. The Commission on
Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not
require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or catalogue all
the contents and the minute details therein. The rule is sufficiently
complied with if the title is comprehensive enough as to include
the general object which the statute seeks to effect, and where, as
here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover,
this Court has invariably adopted a liberal rather than technical
construction of the rule "so as not to cripple or impede legislation."
[Emphases supplied]
In this case, a textual analysis of the various provisions of the law
shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding
objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees
the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive
health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.
The one subject/one title rule expresses the principle that the title
of a law must not be "so uncertain that the average person reading
it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring
to or indicating one subject where another or different one is really
embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the goal
of achieving "sustainable human development" as stated under its
terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the
assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners

The petitioners assail the RH Law because it violates the right to

life and health of the unborn child under Section 12, Article II of the
Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting
abortion, Section 4(a) of the RH Law considers contraceptives that
prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning
contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the
Constitution to afford protection to the fertilized ovum which
already has life.
They argue that even if Section 9 of the RH Law allows only "nonabortifacient" hormonal contraceptives, intrauterine devices,
injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows
that contraceptives use results in abortion as they operate to kill
the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human
good, the petitioners assert that the State sanction of
contraceptive use contravenes natural law and is an affront to the
dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires
the Food and Drug Administration (FDA) to certify that the product
or supply is not to be used as an abortifacient, the assailed
legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that will
actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully
make a certification that it shall not be used for abortifacient
purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent
of the Framers of the Constitution was simply the prohibition of
abortion. They contend that the RH Law does not violate the
Constitution since the said law emphasizes that only "nonabortifacient" reproductive health care services, methods, devices
products and supplies shall be made accessible to the public. 134
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due
consideration to various studies and consultations with the World
Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such a

88
determination and pass judgment only when a particular drug or
device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional
protection of one's right to life is not violated considering that
various studies of the WHO show that life begins from the
implantation of the fertilized ovum. Consequently, he argues that
the RH Law is constitutional since the law specifically provides that
only contraceptives that do not prevent the implantation of the
fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being
enjoys the right to life.137
Even if not formally established, the right to life, being grounded
on natural law, is inherent and, therefore, not a creation of, or
dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample
protection. Section 1, Article III of the Constitution provides:
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.
As expounded earlier, the use of contraceptives and family
planning methods in the Philippines is not of recent vintage. From
the enactment of R.A. No. 4729, entitled "An Act To Regulate The
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices "on June 18, 1966, prescribing rules on contraceptive
drugs and devices which prevent fertilization,138 to the promotion of
male vasectomy and tubal ligation,139 and the ratification of
numerous international agreements, the country has long
recognized the need to promote population control through the use
of contraceptives in order to achieve long-term economic
development. Through the years, however, the use of
contraceptives and other family planning methods evolved from
being a component of demographic management, to one centered
on the promotion of public health, particularly, reproductive
health.140
This has resulted in the enactment of various measures promoting
women's rights and health and the overall promotion of the
family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365
or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as the "The Magna Carta of Women" were
legislated. Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle

of non-coercion."141 As will be discussed later, these principles are

not merely grounded on administrative policy, but rather,
originates from the constitutional protection expressly provided to
afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the
question of when life begins is a scientific and medical issue that
should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon
that the individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be
made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and
the life of the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive
the support of the Government.
Textually, the Constitution affords protection to the unborn from
conception. This is undisputable because before conception, there
is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or
when life begins. The problem has arisen because, amazingly,
there are quarters who have conveniently disregarded the
scientific fact that conception is reckoned from fertilization. They
are waving the view that life begins at implantation. Hence, the
issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception
is synonymous with "fertilization" of the female ovum by the male
sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum
in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and ordinary
meaning. As held in the recent case of Chavez v. Judicial Bar
Council:144
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without

89
attempted interpretation. It is a well-settled principle of
constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of
the Constitution 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. Verba legis non est recedendum - from
the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because
it is assumed that the words in which constitutional provisions are
couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it should
ever be present as an important condition for the rule of law to
prevail.
In conformity with the above principle, the traditional meaning of
the word "conception" which, as described and defined by all
reliable and reputable sources, means that life begins at
fertilization.
Webster's Third New International Dictionary describes it as the act
of becoming pregnant, formation of a viable zygote; the
fertilization that results in a new entity capable of developing into a
being like its parents.145
Black's Law Dictionary gives legal meaning to the term
"conception" as the fecundation of the female ovum by the male
spermatozoon resulting in human life capable of survival and
maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing Corporation v. Hon.
Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire
civil personality first before he/she could die. Even a child inside
the womb already has life. No less than the Constitution recognizes
the life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life,
then the cessation thereof even prior to the child being delivered,
qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the
US Supreme Court, said that the State "has respect for human life
at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the
decision, the fetus was referred to, or cited, as a baby or a child. 149

Intent of the Framers

Records of the Constitutional Convention also shed light on the
intention of the Framers regarding the term "conception" used in
Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect
the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life
of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when
the ovum is fertilized by the sperm that there is human life. x x
x.150
xxx
As to why conception is reckoned from fertilization and, as such,
the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner.
The first question that needs to be answered is: Is the fertilized
ovum alive? Biologically categorically says yes, the fertilized ovum
is alive. First of all, like all living organisms, it takes in nutrients
which it processes by itself. It begins doing this upon fertilization.
Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs of life.
Therefore, there is no question that biologically the fertilized ovum
has life.
The second question: Is it human? Genetics gives an equally
categorical "yes." At the moment of conception, the nuclei of the
ovum and the sperm rupture. As this happens 23 chromosomes
from the ovum combine with 23 chromosomes of the sperm to
form a total of 46 chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. Therefore, the
fertilized ovum is human.
Since these questions have been answered affirmatively, we must
conclude that if the fertilized ovum is both alive and human, then,
as night follows day, it must be human life. Its nature is human. 151
Why the Constitution used the phrase "from the moment of
conception" and not "from the moment of fertilization" was not
because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception"
was described by us here before with the scientific phrase
"fertilized ovum" may be beyond the comprehension of some

90
people; we want to use the simpler phrase "from the moment of
conception."152
Thus, in order to ensure that the fertilized ovum is given ample
protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the
purpose of writing a Constitution, without specifying "from the
moment of conception."
Mr. Davide: I would not subscribe to that particular view because
according to the Commissioner's own admission, he would leave it
to Congress to define when life begins. So, Congress can define life
to begin from six months after fertilization; and that would really
be very, very, dangerous. It is now determined by science that life
begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too. 153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on
that point. Actually, that is one of the questions I was going to raise
during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of
the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this
mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to
determine whether certain contraceptives that we know today are
abortifacient or not because it is a fact that some of the so-called
contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the
fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the
opportunity for the fertilized ovum to reach the uterus. Therefore, if
we take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is
what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to
Congress to state whether or not these certain contraceptives are
abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the
Framers of the Constitution emphasized that the State shall
provide equal protection to both the mother and the unborn child

from the earliest opportunity of life, that is, upon fertilization or

upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it
determine when life begins.
Equally apparent, however, is that the Framers of the Constitution
did not intend to ban all contraceptives for being unconstitutional.
In fact, Commissioner Bernardo Villegas, spearheading the need to
have a constitutional provision on the right to life, recognized that
the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the courts
to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the
fertilized ovum should be deemed an abortive and thus prohibited.
Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take
action prior to fertilization should be deemed non-abortive, and
thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx
xxx
xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I
am pro-life, to the point that I would like not only to protect the life
of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be
assured of the legal and pragmatic implications of the term
"protection of the life of the unborn from the moment of
conception." I raised some of these implications this afternoon
when I interjected in the interpellation of Commissioner Regalado. I
would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the
unborn from the moment of conception" we are also actually
saying "no," not "maybe," to certain contraceptives which are
already being encouraged at this point in time. Is that the sense of
the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would
be preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more
about some contraceptives, such as the intra-uterine device which
actually stops the egg which has already been fertilized from
taking route to the uterus. So if we say "from the moment of
conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156

91
The fact that not all contraceptives are prohibited by the 1987
Constitution is even admitted by petitioners during the oral
arguments. There it was conceded that tubal ligation, vasectomy,
even condoms are not classified as abortifacients. 157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life
yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have
porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect,
Your Honor, but I am discussing here Section 12, Article II, Your
Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor. 158
Medical Meaning
That conception begins at fertilization is not bereft of medical
foundation. Mosby s Medical, Nursing, and Allied Health Dictionary
defines conception as "the beginning of pregnancy usually taken to
be the instant a spermatozoon enters an ovum and forms a viable
zygote."159
It describes fertilization as "the union of male and female gametes
to form a zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),161 used by medical schools in the Philippines, also
concludes that human life (human person) begins at the moment
of fertilization with the union of the egg and the sperm resulting in
the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that:

"Human development begins after the union of male and female
gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with
the contact of a sperm (spermatozoon) with a secondary oocyte
(ovum) and ends with the fusion of their pronuclei (the haploid
nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a
zygote, is a large diploid cell that is the beginning, or primordium,
of a human being."162
The authors of Human Embryology & Teratology163 mirror the same
position. They wrote: "Although life is a continuous process,
fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is
thereby formed.... The combination of 23 chromosomes present in
each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed.
The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came
out with a "Paper on the Reproductive Health Bill (Responsible
Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same
time that PMA maintains its strong position that fertilization is
sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no
matter what the purported good outcome would be. In terms of
biology and human embryology, a human being begins
immediately at fertilization and after that, there is no point along
the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal,
or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a
human organism and that the life of a new human being
commences at a scientifically well defined "moment of
conception." This conclusion is objective, consistent with the
factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos. 164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood
under medical parlance, and more importantly, following the
intention of the Framers of the Constitution, the undeniable

92
conclusion is that a zygote is a human organism and that the life of
a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory
advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are
two distinct and successive stages in the reproductive process.
They are not identical and synonymous."166 Citing a letter of the
WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of
conception and it is only after implantation that pregnancy can be
medically detected."167
This theory of implantation as the beginning of life is devoid of any
legal or scientific mooring. It does not pertain to the beginning of
life but to the viability of the fetus. The fertilized ovum/zygote is
not an inanimate object - it is a living human being complete with
DNA and 46 chromosomes.168 Implantation has been
conceptualized only for convenience by those who had population
control in mind. To adopt it would constitute textual infidelity not
only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize
the utilization of any drug or device that would prevent the
implantation of the fetus at the uterine wall. It would be
provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion
and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987
Constitution in protecting the life of the unborn from conception
was to prevent the Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court cannot interpret it
otherwise. This intent of the Framers was captured in the record of
the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no proabortion laws ever passed by Congress or any pro-abortion
decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent
and actually proscribes abortion. While the Court has opted not to
make any determination, at this stage, when life begins, it finds
that the RH Law itself clearly mandates that protection be afforded
from the moment of fertilization. As pointed out by Justice Carpio,

the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded
safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under
Article 256 of the Revised Penal Code, which penalizes the
destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of
methods, facilities, services and supplies that contribute to
reproductive health and well-being by addressing reproductive
health-related problems. It also includes sexual health, the purpose
of which is the enhancement of life and personal relations. The
elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion
complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and
couples, to decide freely and responsibly whether or not to have
children; the number, spacing and timing of their children; to make
other decisions concerning reproduction, free of discrimination,
coercion and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against
abortion, any law, presidential decree or issuance, executive order,
letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act
including Republic Act No. 7392, otherwise known as the Midwifery
Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in
prohibiting abortifacients. To be clear, Section 4(a) of the RH Law
defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the

93
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be
afforded from the moment of fertilization. By using the word " or,"
the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that
induce the destruction of a fetus inside the mother's womb. Thus,
an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's
womb; or
(c) Prevents the fertilized ovum to reach and be implanted
in the mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds
that the RH Law, consistent with the Constitution, recognizes that
the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because
the RH Law, first, prohibits any drug or device that induces
abortion (first kind), which, as discussed exhaustively above, refers
to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized
ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the
fertilized ovum to reach and be implanted in the mother's womb is
an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only be
given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent - all the way
until it reaches and implants in the mother's womb. After all, if life
is only recognized and afforded protection from the moment the
fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch as it affords
protection to the fertilized ovum, the RH Law does not sanction
abortion. To repeat, it is the Court's position that life begins at
fertilization, not at implantation. When a fertilized ovum is
implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It
started earlier. And as defined by the RH Law, any drug or device
that induces abortion, that is, which kills or destroys the fertilized

ovum or prevents the fertilized ovum to reach and be implanted in

the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under
Section 9 of the law that "any product or supply included or to be
included in the EDL must have a certification from the FDA that
said product and supply is made available on the condition that it
is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device
will not all be used as an abortifacient, since the agency cannot be
present in every instance when the contraceptive product or
supply will be used.171
Pursuant to its declared policy of providing access only to safe,
legal and non-abortifacient contraceptives, however, the Court
finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or
to be included in the EDL must have a certification from the FDA
that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the
same section that provides:
Provided, further, That the foregoing offices shall not purchase or
acquire by any means emergency contraceptive pills, postcoital
pills, abortifacients that will be used for such purpose and their
other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the
RH-IRR gravely abused their office when they redefined the
meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be
defined as follows:
a) Abortifacient refers to any drug or device that primarily induces
abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]

94
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined,
viz:
j) Contraceptive refers to any safe, legal, effective and scientifically
proven modern family planning method, device, or health product,
whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum
from being implanted in the mother's womb in doses of its
approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only those that
primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del
Castillo are well taken. As they pointed out, with the insertion of
the word "primarily," Section 3.0l(a) and G) of the RH-IRR 173 must
be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section
3.0l(a) and G) of the RH-IRR is indeed ultra vires. It contravenes
Section 4(a) of the RH Law and should, therefore, be declared
invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives
which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the
Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as pertinent
here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would
permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism. 174
Also, as discussed earlier, Section 9 calls for the certification by the
FDA that these contraceptives cannot act as abortive. With this,
together with the definition of an abortifacient under Section 4 (a)
of the RH Law and its declared policy against abortion, the
undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do
not have the primary action of causing abortion or the destruction
of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb,
but also those that do not have the secondary action of acting the
same way.

Indeed, consistent with the constitutional policy prohibiting

abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the RH
Law and its implementing rules must be consistent with each other
in prohibiting abortion. Thus, the word " primarily" in Section
3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only
those contraceptives that have the primary effect of being an
abortive would effectively "open the floodgates to the approval of
contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of
the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health
because it requires the inclusion of hormonal contraceptives,
intrauterine devices, injectables and family products and supplies
in the National Drug Formulary and the inclusion of the same in the
regular purchase of essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the petitioners
posit that the risk of developing breast and cervical cancer is
greatly increased in women who use oral contraceptives as
compared to women who never use them. They point out that the
risk is decreased when the use of contraceptives is discontinued.
Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of
venous thromboembolism, a twofold increased risk of ischematic
stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and
"sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the
petitioners assert that the assailed legislation only seeks to ensure
that women have pleasurable and satisfying sex lives. 180
The OSG, however, points out that Section 15, Article II of the
Constitution is not self-executory, it being a mere statement of the
administration's principle and policy. Even if it were self-executory,
the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health.
In this regard, the Constitution is replete with provisions protecting
and promoting the right to health. Section 15, Article II of the
Constitution provides:

95
Section 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States'
duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make
essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women, and children.
The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food
and drug regulatory system and undertake appropriate health,
manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled
person for their rehabilitation, self-development, and self-reliance,
and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are
self-executing. Unless the provisions clearly express the contrary,
the provisions of the Constitution should be considered selfexecutory. There is no need for legislation to implement these selfexecuting provisions.182 In Manila Prince Hotel v. GSIS,183 it was
stated:
x x x Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If
the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it
has always been, that
... in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing. . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute.
(Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners,

particularly ALFI, do not question contraception and contraceptives
per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives
are not prohibited when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard
is to leave intact the provisions of R.A. No. 4729. There is no
intention at all to do away with it. It is still a good law and its
requirements are still in to be complied with. Thus, the Court
agrees with the observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require
the prescription of a licensed physician. With R.A. No. 4729 in
place, there exists adequate safeguards to ensure the public that
only contraceptives that are safe are made available to the public.
As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives,
the same cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale,
Dispensation, and/ or Distribution of Contraceptive Drugs and
Devices" and Republic Act No. 5921 or "An Act Regulating the
Practice of Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not
inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of
contraceptive drugs and devices are particularly governed by RA
No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute whether for or
without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a
qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical,
or portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and

96
"(b) "Contraceptive device" is any instrument, device,
material, or agent introduced into the female reproductive
system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the
provisions of this Act shall be punished with a fine of not more than
five hundred pesos or an imprisonment of not less than six months
or more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA
No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices.
No medicine, pharmaceutical, or drug of whatever nature and kind
or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except
through a prescription drugstore or hospital pharmacy, duly
established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH
Law and other relevant statutes, the pretension of the petitioners
that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted
and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with
Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies.
- The DOH shall procure, distribute to LGUs and monitor the usage
of family planning supplies for the whole country. The DOH shall
coordinate with all appropriate local government bodies to plan
and implement this procurement and distribution program. The
supply and budget allotments shall be based on, among others, the
current levels and projections of the following:
(a) Number of women of reproductive age and couples who
want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used;
and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement,
distribution and monitoring program consistent with the overall
provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and
devices, it must consider the provisions of R.A. No. 4729, which is
still in effect, and ensure that the contraceptives that it will procure
shall be from a duly licensed drug store or pharmaceutical

company and that the actual dispensation of these contraceptive

drugs and devices will done following a prescription of a qualified
medical practitioner. The distribution of contraceptive drugs and
devices must not be indiscriminately done. The public health must
be protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it
may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive
has yet been submitted to the FDA pursuant to the RH Law. It
behooves the Court to await its determination which drugs or
devices are declared by the FDA as safe, it being the agency
tasked to ensure that food and medicines available to the public
are safe for public consumption. Consequently, the Court finds
that, at this point, the attack on the RH Law on this ground is
premature. Indeed, the various kinds of contraceptives must first
be measured up to the constitutional yardstick as expounded
herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot
legislate that hormonal contraceptives and intra-uterine devices
are safe and non-abortifacient. The first sentence of Section 9 that
ordains their inclusion by the National Drug Formulary in the EDL
by using the mandatory "shall" is to be construed as operative only
after they have been tested, evaluated, and approved by the FDA.
The FDA, not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family
planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion
of hormonal contraceptives, intra-uterine devices, injectables, and
other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is
not mandatory. There must first be a determination by the FDA that
they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination
by Congress that the gamut of contraceptives are "safe, legal, nonabortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception

97
While contraceptives and procedures like vasectomy and tubal
ligation are not covered by the constitutional proscription, there
are those who, because of their religious education and
background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical
practitioners who essentially claim that their beliefs prohibit not
only the use of contraceptives but also the willing participation and
cooperation in all things dealing with contraceptive use. Petitioner
PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to
the reciprocal self-giving of the spouses; it harms true love and
denies the sovereign rule of God in the transmission of Human
life."188
The petitioners question the State-sponsored procurement of
contraceptives, arguing that the expenditure of their taxes on
contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts
to address religious sentiments by making provisions for a
conscientious objector, the constitutional guarantee is nonetheless
violated because the law also imposes upon the conscientious
objector the duty to refer the patient seeking reproductive health
services to another medical practitioner who would be able to
provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very
thing he refuses to do without violating his/her religious beliefs. 190
They further argue that even if the conscientious objector's duty to
refer is recognized, the recognition is unduly limited, because
although it allows a conscientious objector in Section 23 (a)(3) the
option to refer a patient seeking reproductive health services and
information - no escape is afforded the conscientious objector in
Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health
facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c)
teachers in public schools referred to in Section 14 of the RH Law,
are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile,
contend that the requirement to refer the matter to another health
care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling

them to do the act against their will violates the Doctrine of

Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too
secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects,
mandatory sex education, mandatory pro-bono reproductive health
services to indigents encroach upon the religious freedom of those
upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious
objector to refer the person seeking reproductive health care
services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the
right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither
harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling
state interest to justify regulation of religious freedom because it
mentions no emergency, risk or threat that endangers state
interests. It does not explain how the rights of the people (to
equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make
decisions according to religious convictions, ethics, cultural beliefs
and the demands of responsible parenthood) are being threatened
or are not being met as to justify the impairment of religious
freedom.194
Finally, the petitioners also question Section 15 of the RH Law
requiring would-be couples to attend family planning and
responsible parenthood seminars and to obtain a certificate of
compliance. They claim that the provision forces individuals to
participate in the implementation of the RH Law even if it
contravenes their religious beliefs.195 As the assailed law dangles
the threat of penalty of fine and/or imprisonment in case of noncompliance with its provisions, the petitioners claim that the RH
Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck
down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does
not provide that a specific mode or type of contraceptives be used,
be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to
serve the public interest by providing accessible, effective and
quality reproductive health services to ensure maternal and child

98
health, in line with the State's duty to bring to reality the social
justice health guarantees of the Constitution,197 and that what the
law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the
assailed law only seeks to guarantee informed choice, which is an
assurance that no one will be compelled to violate his religion
against his free will.199
The respondents add that by asserting that only natural family
planning should be allowed, the petitioners are effectively going
against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law. 200 In
other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural family
planning methods and impose this on the entire citizenry. 201
With respect to the duty to refer, the respondents insist that the
same does not violate the constitutional guarantee of religious
freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to
keep silent but is required to refer -and that of the citizen who
needs access to information and who has the right to expect that
the health care professional in front of her will act professionally.
For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to
freely exercise one's religion without unnecessarily infringing on
the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is
minimal as the duty to refer is limited in duration, location and
impact.203
Regarding mandatory family planning seminars under Section 15 ,
the respondents claim that it is a reasonable regulation providing
an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information
received on account of their attendance in the required seminars
are not compelled to accept information given to them. They are
completely free to reject any information they do not agree with
and retain the freedom to decide on matters of family life without
intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion
that natural family planning is the only method acceptable to
Catholics and the Catholic hierarchy. Citing various studies and
surveys on the matter, they highlight the changing stand of the
Catholic Church on contraception throughout the years and note

the general acceptance of the benefits of contraceptives by its

followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown
us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is
tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally
believe in a deity, whatever they conceived Him to be, and to
whom they call for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime
of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God "
manifested their spirituality innate in our nature and consciousness
as a people, shaped by tradition and historical experience. As this
is embodied in the preamble, it means that the State recognizes
with respect the influence of religion in so far as it instills into the
mind the purest principles of morality.205 Moreover, in recognition of
the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary
of religious officers in government institutions, and optional
religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so
that the State would not encroach into the affairs of the church,
and vice-versa. The principle of separation of Church and State
was, thus, enshrined in Article II, Section 6 of the 1987
Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on
mutual respect.1wphi1 Generally, the State cannot meddle in the
internal affairs of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one religion and

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discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if
it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever
be preferred over another, the Constitution in the above-cited
provision utilizes the term "church" in its generic sense, which
refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the
"Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide
an ample barrier to protect the State from the pursuit of its secular
objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987
Constitution:
Section. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid,
or employed, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution, or system
of religion, or of any priest, preacher, minister, other religious
teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides
two guarantees: the Establishment Clause and the Free Exercise
Clause.
The establishment clause "principally prohibits the State from
sponsoring any religion or favoring any religion as against other
religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state
religion and the use of public resources for the support or
prohibition of a religion.
On the other hand, the basis of the free exercise clause is the
respect for the inviolability of the human conscience. 207 Under this
part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief
and faith.208 Explaining the concept of religious freedom, the Court,
in Victoriano v. Elizalde Rope Workers Union209 wrote:

The constitutional provisions not only prohibits legislation for the

support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed
or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude. It has
been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Any legislation
whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as being
only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83
S. Ct. 1970) But if the state regulates conduct by enacting, within
its power, a general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld
v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v.
Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to
serve contradictory purposes. They have a single goal-to promote
freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and
practice, while the establishment clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices. 210
Corollary to the guarantee of free exercise of one's religion is the
principle that the guarantee of religious freedom is comprised of
two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v.
Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only
by one's imagination and thought. So is the freedom of belief,
including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But

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between the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome
power of the State and can be enjoyed only with proper regard to
the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare." 213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the
State, the Court adheres to the doctrine of benevolent neutrality.
This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutralityaccommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution." 215 In
the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to
these governmental actions, accommodation of religion may be
allowed, not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion
without hindrance. "The purpose of accommodation is to remove a
burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its 'burdensome effect,'
whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the
compelling state interest test is proper.218Underlying the compelling
state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine
these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear
and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling state interest"
test. After Victoriano , German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test

and overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the " clear and present danger" test in the
maiden case of A merican Bible Society. Not surprisingly, all the
cases which employed the "clear and present danger" or "grave
and immediate danger" test involved, in one form or another,
religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set
the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was
the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate
to the facts of the case.
The case at bar does not involve speech as in A merican Bible
Society, Ebralinag and Iglesia ni Cristo where the "clear and
present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights "the most inalienable and sacred of all human rights", in the words
of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to

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do otherwise would allow the state to batter religion, especially the
less powerful ones until they are destroyed. In determining which
shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest"
serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will
not be preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to
determine whether the use of contraceptives or one's participation
in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared that
matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the
province of the civil courts."220 The jurisdiction of the Court extends
only to public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only in this
realm where it has authority. Stated otherwise, while the Court
stands without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious
freedom.
At first blush, it appears that the RH Law recognizes and respects
religion and religious beliefs and convictions. It is replete with
assurances the no one can be compelled to violate the tenets of
his religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the
following:
1. The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.
[Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution

and the foundation of the family which in turn is the foundation of
the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood."
[Section 2, Declaration of Policy]
3. The State shall promote and provide information and access,
without bias, to all methods of family planning, including effective
natural and modern methods which have been proven medically
safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided,
That the State shall also provide funding support to promote
modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their
religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals
and couples to have the number of children they desire with due
consideration to the health, particularly of women, and the
resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions. [Section
3CDJ
5. The State shall respect individuals' preferences and choice of
family planning methods that are in accordance with their religious
convictions and cultural beliefs, taking into consideration the
State's obligations under various human rights instruments.
[Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) ,
women's and people's organizations, civil society, faith-based
organizations, the religious sector and communities is crucial to
ensure that reproductive health and population and development
policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent
to respond to the needs and aspirations of the family and children.
It is likewise a shared responsibility between parents to determine
and achieve the desired number of children, spacing and timing of
their children according to their own family life aspirations, taking
into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)

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While the Constitution prohibits abortion, laws were enacted
allowing the use of contraceptives. To some medical practitioners,
however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs
should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other
groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition
that the State cannot enhance its population control program
through the RH Law simply because the promotion of contraceptive
use is contrary to their religious beliefs. Indeed, the State is not
precluded to pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One cannot
refuse to pay his taxes simply because it will cloud his conscience.
The demarcation line between Church and State demands that one
render unto Caesar the things that are Caesar's and unto God the
things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote
reproductive health manifestly respects diverse religious beliefs in
line with the Non-Establishment Clause, the same conclusion
cannot be reached with respect to Sections 7, 23 and 24 thereof.
The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health
care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious
or ethical beliefs.
In a situation where the free exercise of religion is allegedly
burdened by government legislation or practice, the compelling
state interest test in line with the Court's espousal of the Doctrine
of Benevolent Neutrality in Escritor, finds application. In this case,
the conscientious objector's claim to religious freedom would
warrant an exemption from obligations under the RH Law, unless
the government succeeds in demonstrating a more compelling
state interest in the accomplishment of an important secular
objective. Necessarily so, the plea of conscientious objectors for
exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious

objector's right to religious freedom has been burdened. As in
Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty.
The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the
RH Law promotes.
The Court is of the view that the obligation to refer imposed by the
RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his
will, refers a patient seeking information on modem reproductive
health products, services, procedures and methods, his conscience
is immediately burdened as he has been compelled to perform an
act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free
exercise clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an opt-out clause,
it is, however, a false compromise because it makes pro-life health
providers complicit in the performance of an act that they find
morally repugnant or offensive. They cannot, in conscience, do
indirectly what they cannot do directly. One may not be the
principal, but he is equally guilty if he abets the offensive act by
indirect participation.
Moreover, the guarantee of religious freedom is necessarily
intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to
individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the
liberty of the individual to utter what is in his mind and the liberty
not to utter what is not in his mind.223 While the RH Law seeks to
provide freedom of choice through informed consent, freedom of
choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one's religion. 224
In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of the
State, on the other, to provide access and information on
reproductive health products, services, procedures and methods to
enable the people to determine the timing, number and spacing of

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the birth of their children, the Court is of the strong view that the
religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector
should be exempt from compliance with the mandates of the RH
Law. If he would be compelled to act contrary to his religious belief
and conviction, it would be violative of "the principle of noncoercion" enshrined in the constitutional right to free exercise of
religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court
of Session, found in the case of Doogan and Wood v. NHS Greater
Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's
Abortion Act of 1967, could not be required to delegate, supervise
or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were
defined according to whether the person was taking part 'directly'
or ' indirectly' this would actually mean more complexity and
uncertainty."227
While the said case did not cover the act of referral, the applicable
principle was the same - they could not be forced to assist
abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty
hospitals and hospitals owned and operated by a religious group
and health care service providers. Considering that Section 24 of
the RH Law penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and Section 23(a)
(3), the Court deems that it must be struck down for being violative
of the freedom of religion. The same applies to Section 23(a)(l) and
(a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and
in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v.
Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good."10
The Court is not oblivious to the view that penalties provided by
law endeavour to ensure compliance. Without set consequences

for either an active violation or mere inaction, a law tends to be

toothless and ineffectual. Nonetheless, when what is bartered for
an effective implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible
religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or
municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as
conscientious objectors.
This is discriminatory and violative of the equal protection clause.
The conscientious objection clause should be equally protective of
the religious belief of public health officers. There is no perceptible
distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in
every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the
government.
It should be stressed that intellectual liberty occupies a place
inferior to none in the hierarchy of human values. The mind must
be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or
through the media and, thus, seek other candid views in occasions
or gatherings or in more permanent aggrupation. Embraced in
such concept then are freedom of religion, freedom of speech, of
the press, assembly and petition, and freedom of association. 229
The discriminatory provision is void not only because no such
exception is stated in the RH Law itself but also because it is
violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR
and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- inIntervention on page 52, you mentioned RH Law is replete with

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provisions in upholding the freedom of religion and respecting
religious convictions. Earlier, you affirmed this with qualifications.
Now, you have read, I presumed you have read the IRRImplementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and
I have not thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find
in the RH Law. But in the IRR it says: " .... skilled health
professionals such as provincial, city or municipal health officers,
chief of hospitals, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with
the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors." Do you
agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private
practitioners who can be conscientious objectors, skilled health
professionals cannot be considered conscientious objectors. Do you
agree with this? Is this not against the constitutional right to the
religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the
law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the
respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory character of the
law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions
proved to be in vain. The OSG was curiously silent in the
establishment of a more compelling state interest that would
rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During the
oral arguments, the OSG maintained the same silence and evasion.
The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is
the compelling State interest in imposing this duty to refer to a
conscientious objector which refuses to do so because of his
religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a
compelling State interest, this is an ordinary health legislation
involving professionals. This is not a free speech matter or a pure
free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients. 231
Resultantly, the Court finds no compelling state interest which
would limit the free exercise clause of the conscientious objectors,
however few in number. Only the prevention of an immediate and
grave danger to the security and welfare of the community can
justify the infringement of religious freedom. If the government
fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe.
It also means the freedom to act or not to act according to what
one believes. And this freedom is violated when one is compelled
to act against one's belief or is prevented from acting according to
one's belief.233
Apparently, in these cases, there is no immediate danger to the life
or health of an individual in the perceived scenario of the subject
provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is
contingent on whether or not the mother decides to adopt or use
the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand,
the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the
infringement of the conscientious objector's religious freedom, the
respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the

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respondents have not presented any government effort exerted to
show that the means it takes to achieve its legitimate state
objective is the least intrusive means.234 Other than the assertion
that the act of referring would only be momentary, considering that
the act of referral by a conscientious objector is the very action
being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without violating
the rights of the conscientious objector. The health concerns of
women may still be addressed by other practitioners who may
perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced
to perform an act in utter reluctance deserves the protection of the
Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the
Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4 729 or
the Contraceptive Act, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as "The Magna
Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women,
in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health
Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health
services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and
morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in
accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal
services to address pregnancy and infant health
and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective
methods of family planning;
(4) Family and State collaboration in youth
sexuality education and health services without

prejudice to the primary right and duty of parents

to educate their children;
(5) Prevention and management of reproductive
tract infections, including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of reproductive
tract cancers like breast and cervical cancers, and
other gynecological conditions and disorders;
(7) Prevention of abortion and management of
pregnancy-related complications;
(8) In cases of violence against women and
children, women and children victims and survivors
shall be provided with comprehensive health
services that include psychosocial, therapeutic,
medical, and legal interventions and assistance
towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and
sexual dysfunction pursuant to ethical norms and
medical standards;
(10) Care of the elderly women beyond their childbearing years; and
(11) Management, treatment, and intervention of
mental health problems of women and girls. In
addition, healthy lifestyle activities are encouraged
and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State
shall provide women in all sectors with appropriate, timely,
complete, and accurate information and education on all the
above-stated aspects of women's health in government education
and training programs, with due regard to the following:
(1) The natural and primary right and duty of
parents in the rearing of the youth and the
development of moral character and the right of
children to be brought up in an atmosphere of
morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that
affirms human dignity; and
(3) Ethical, legal, safe, and effective family
planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied
that the compelling state interest was "Fifteen maternal deaths per
day, hundreds of thousands of unintended pregnancies, lives

106
changed, x x x."235 He, however, failed to substantiate this point by
concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health
Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008, 236 although there was
still no RH Law at that time. Despite such revelation, the
proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of
social healthcare programs for Filipino women, they could not be
solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid
exception set forth in the law. While generally healthcare service
providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an
exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering
that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in
grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we
are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of
a child, the doctor is morally obliged always to try to save both
lives. If, however, it is impossible, the resulting death to one should
not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal
author of the RH Bill in the House of Representatives of the
principle of double-effect wherein intentional harm on the life of
either the mother of the child is never justified to bring about a
"good" effect. In a conflict situation between the life of the child
and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save
both, provided that no direct harm is intended to the other. If the
above principles are observed, the loss of the child's life or the
mother's life is not intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives are equally
valuable.238

Accordingly, if it is necessary to save the life of a mother,

procedures endangering the life of the child may be resorted to
even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than
justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition
for the issuance of a marriage license, the Court finds the same to
be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires
is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by
the OSG, those who receive any information during their
attendance in the required seminars are not compelled to accept
the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to
decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i)
thereof violates the provisions of the Constitution by intruding into
marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its
solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the
family as it is the basic social institution. In fact, one article, Article
XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse,

107
cruelty, exploitation and other conditions prejudicial to their
development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the
planning and implementation of policies and programs that affect
them.
In this case, the RH Law, in its not-so-hidden desire to control
population growth, contains provisions which tend to wreck the
family as a solid social institution. It bars the husband and/or the
father from participating in the decision making process regarding
their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is
already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
shall: ...
(2) refuse to perform legal and medically-safe reproductive health
procedures on any person of legal age on the ground of lack of
consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in
case of disagreement, the decision of the one undergoing the
procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like
tubal litigation and vasectomy which, by their very nature, should
require mutual consent and decision between the husband and the
wife as they affect issues intimately related to the founding of a
family. Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by
both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that
affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual
decision-making. By giving absolute authority to the spouse who
would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of
the State to protect marriage as an inviolable social institution. 241

Decision-making involving a reproductive health procedure is a

private matter which belongs to the couple, not just one of them.
Any decision they would reach would affect their future as a family
because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the
State, which has not shown any compelling interest, the State
should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A.
No. 9710, otherwise known as the "Magna Carta for Women,"
provides that women shall have equal rights in all matters relating
to marriage and family relations, including the joint decision on the
number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive
health procedure.242
The right to chart their own destiny together falls within the
protected zone of marital privacy and such state intervention
would encroach into the zones of spousal privacy guaranteed by
the Constitution. In our jurisdiction, the right to privacy was first
recognized in Marje v. Mutuc,243 where the Court, speaking through
Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional
protection."244 Marje adopted the ruling of the US Supreme Court in
Griswold v. Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older
than our political parties, older than our school system. Marriage is
a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is
an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made
the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right to privacy of
married persons. Nevertheless, it recognized the zone of privacy
rightfully enjoyed by couples. Justice Douglas in Grisworld wrote

108
that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will
decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases
where the minor, who will be undergoing a procedure, is already a
parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family
planning services, whether natural or artificial: Provided, That
minors will not be allowed access to modern methods of family
planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a
miscarriage.
There can be no other interpretation of this provision except that
when a minor is already a parent or has had a miscarriage, the
parents are excluded from the decision making process of the
minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the
comfort, care, advice, and guidance of her own parents. The State
cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no
longer relevant is clearly anti-family. It does not promote unity in
the family. It is an affront to the constitutional mandate to protect
and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional
mandate that "the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government." 247 In
this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify
the right of parents. It imports the assertion that the right of
parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to
exercise parental control over their minor-child or the right of the
spouses to mutually decide on matters which very well affect the
very purpose of marriage, that is, the establishment of conjugal
and family life, would result in the violation of one's privacy with
respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and

violative of the recognition that the State affords couples entering

into the special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take over
the role of parents in the care and custody of a minor child,
whether or not the latter is already a parent or has had a
miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception
provided in the second paragraph of Section 7 or with respect to
the consenting spouse under Section 23(a)(2)(i), a distinction must
be made. There must be a differentiation between access to
information about family planning services, on one hand, and
access to the reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional
objection to the acquisition of information by the minor referred to
under the exception in the second paragraph of Section 7 that
would enable her to take proper care of her own body and that of
her unborn child. After all, Section 12, Article II of the Constitution
mandates the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a person
to make informed decisions is essential in the protection and
maintenance of ones' health, access to such information with
respect to reproductive health must be allowed. In this situation,
the fear that parents might be deprived of their parental control is
unfounded because they are not prohibited to exercise parental
guidance and control over their minor child and assist her in
deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be
made in life-threatening cases that require the performance of
emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not
be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate
medical care urgently needed to preserve the primordial right, that
is, the right to life.
In this connection, the second sentence of Section 23(a)(2)
(ii)249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical
procedures," it denies the parents their right of parental authority
in cases where what is involved are "non-surgical procedures."

109
Save for the two exceptions discussed above, and in the case of an
abused child as provided in the first sentence of Section 23(a)(2)
(ii), the parents should not be deprived of their constitutional right
of parental authority. To deny them of this right would be an affront
to the constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section
24 thereof, mandating the teaching of Age-and DevelopmentAppropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom .
According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education
even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United
States and statistical data gathered in the country, the petitioners
aver that the prevalence of contraceptives has led to an increase
of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of
poverty"; the aging of society; and promotion of promiscuity
among the youth.251
At this point, suffice it to state that any attack on the validity of
Section 14 of the RH Law is premature because the Department of
Education, Culture and Sports has yet to formulate a curriculum on
age-appropriate reproductive health education. One can only
speculate on the content, manner and medium of instruction that
will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or
validity.
At any rate, Section 12, Article II of the 1987 Constitution provides
that the natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the
1973 Constitution and the 1935 Constitution, the 1987 Constitution
affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth
is superior to that of the State. 252
It is also the inherent right of the State to act as parens patriae to
aid parents in the moral development of the youth. Indeed, the
Constitution makes mention of the importance of developing the

youth and their important role in nation building.253 Considering

that Section 14 provides not only for the age-appropriatereproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and
children and other forms of gender based violence and teen
pregnancy; physical, social and emotional changes in adolescents;
women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood,
and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of
the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes
among adolescents - the Court finds that the legal mandate
provided under the assailed provision supplements, rather than
supplants, the rights and duties of the parents in the moral
development of their children.
Furthermore, as Section 14 also mandates that the mandatory
reproductive health education program shall be developed in
conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section
3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise
their objection to their participation in the reproductive health
education program provided under Section 14 of the RH Law on the
ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness
and, thus violates the due process clause of the Constitution.
According to them, Section 23 (a)(l) mentions a "private health
service provider" among those who may be held punishable but
does not define who is a "private health care service provider."
They argue that confusion further results since Section 7 only
makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups from
rendering reproductive health service and modern family planning
methods. It is unclear, however, if these institutions are also
exempt from giving reproductive health information under Section
23(a)(l), or from rendering reproductive health procedures under
Section 23(a)(2).

110
Finally, it is averred that the RH Law punishes the withholding,
restricting and providing of incorrect information, but at the same
time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves
law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance
with their plain meaning alone, but also in relation to other parts of
the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it
must be construed together with the other parts and kept
subservient to the general intent of the whole enactment. 256
As correctly noted by the OSG, in determining the definition of
"private health care service provider," reference must be made to
Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health
care institution, which is duly licensed and accredited and devoted
primarily to the maintenance and operation of facilities for health
promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or
deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged
in the delivery of health care services; or (4) barangay health
worker who has undergone training programs under any accredited
government and NGO and who voluntarily renders primarily health
care services in the community after having been accredited to
function as such by the local health board in accordance with the
guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in
Section 7 of the law, instead of "private health care service
provider," should not be a cause of confusion for the obvious
reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be
exempt from being obligated to render reproductive health service
and modem family planning methods, includes exemption from

being obligated to give reproductive health information and to

render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service
and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The
terms "service" and "methods" are broad enough to include the
providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH
Law punishes health care service providers who intentionally
withhold, restrict and provide incorrect information regarding
reproductive health programs and services. For ready reference,
the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
shall:
(1) Knowingly withhold information or restrict the dissemination
thereof, and/ or intentionally provide incorrect information
regarding programs and services on reproductive health including
the right to informed choice and access to a full range of legal,
medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing to
agree with a copy or model or with established rules; inaccurate,
faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other
hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to
Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health and
safety demand that health care service providers give their honest
and correct medical information in accordance with what is
acceptable in medical practice. While health care service providers
are not barred from expressing their own personal opinions
regarding the programs and services on reproductive health, their
right must be tempered with the need to provide public health and
safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal
protection clause under the Constitution as it discriminates against
the poor because it makes them the primary target of the
government program that promotes contraceptive use . They

111
argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those
mentioned in the guiding principles259 and definition of terms260 of
the law.
They add that the exclusion of private educational institutions from
the mandatory reproductive health education program imposed by
the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the
occasion to expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat
similarly situated individuals in a similar manner." "The purpose of
the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires

is equality among equals as determined according to a valid

classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a violation of
the equal protection clause. In fact, it is pursuant to Section 11,
Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing
that they be given priority in addressing the health development of
the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make
essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women, and children.
The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and
desire to have children. There is, therefore, no merit to the

112
contention that the RH Law only seeks to target the poor to reduce
their number. While the RH Law admits the use of contraceptives,
it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive
health."
Moreover, the RH Law does not prescribe the number of children a
couple may have and does not impose conditions upon couples
who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children
only if they would raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government
programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions
from the mandatory reproductive health education program under
Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational
institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm
as it violates the constitutional prohibition against involuntary
servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service
providers to render forty-eight (48) hours of pro bono reproductive
health services, actually amounts to involuntary servitude because
it requires medical practitioners to perform acts against their
will.262
The OSG counters that the rendition of pro bono services
envisioned in Section 17 can hardly be considered as forced labor
analogous to slavery, as reproductive health care service providers
have the discretion as to the manner and time of giving pro bono
services. Moreover, the OSG points out that the imposition is within
the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is
undeniably imbued with public interest that it is both a power and

a duty of the State to control and regulate it in order to protect and

promote the public welfare. Like the legal profession, the practice
of medicine is not a right but a privileged burdened with conditions
as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect
the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades,
even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary
servitude connotes the presence of force, threats, intimidation or
other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private
and non- government reproductive healthcare service providers to
render pro bono service. Other than non-accreditation with
PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare
service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to
provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro bono
service against their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth, the Court
does not consider the same to be an unreasonable burden, but
rather, a necessary incentive imposed by Congress in the
furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it
should be emphasized that conscientious objectors are exempt
from this provision as long as their religious beliefs and convictions
do not allow them to render reproductive health service, pro bona
or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the
FDA of the power to determine whether or not a supply or product
is to be included in the Essential Drugs List (EDL). 266
The Court finds nothing wrong with the delegation. The FDA does
not only have the power but also the competency to evaluate,
register and cover health services and methods. It is the only
government entity empowered to render such services and highly
proficient to do so. It should be understood that health services
and methods fall under the gamut of terms that are associated
with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A.
No. 9711 reads:

113
SEC. 4. To carry out the provisions of this Act, there is hereby
created an office to be called the Food and Drug Administration
(FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following
functions, powers and duties:
"(a) To administer the effective implementation of this Act
and of the rules and regulations issued pursuant to the
same;
"(b) To assume primary jurisdiction in the collection of
samples of health products;
"(c) To analyze and inspect health products in connection
with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the
preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy,
quality and fill of container;
"(e) To issue certificates of compliance with technical
requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance
with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health
products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health
products prior to the issuance of appropriate authorizations
to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors,
importers, exporters, wholesalers, retailers, consumers,
and non-consumer users of health products to report to the
FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious
illness or serious injury to a consumer, a patient, or any
person;
"(j) To issue cease and desist orders motu propio or upon
verified complaint for health products, whether or not
registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after
due process has been observed;
"(k) After due process, to order the ban, recall, and/or
withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or
patient, or is found to be imminently injurious, unsafe,

dangerous, or grossly deceptive, and to require all

concerned to implement the risk management plan which
is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and
duties of the FDA are specific to enable the agency to carry out the
mandates of the law. Being the country's premiere and sole agency
that ensures the safety of food and medicines available to the
public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of
necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and
medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended
that the public be given only those medicines that are proven
medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to cope
directly with the many problems demanding its attention. The
growth of society has ramified its activities and created peculiar
and sophisticated problems that the legislature cannot be expected
reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim
that the RH Law infringes upon the powers devolved to local
government units (LGUs) under Section 17 of the Local
Government Code. Said Section 17 vested upon the LGUs the
duties and functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging
the duties and functions currently vested upon them. They
shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to

114
this Code. Local government units shall likewise exercise
such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental
to efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not
limited to, x x x.
While the aforementioned provision charges the LGUs to
take on the functions and responsibilities that have already
been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in
their respective jurisdictions, paragraph (c) of the same
provision provides a categorical exception of cases
involving nationally-funded projects, facilities, programs
and services.268Thus:
(c) Notwithstanding the provisions of subsection (b) hereof,
public works and infrastructure projects and other facilities,
programs and services funded by the National Government
under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or
partially funded from foreign sources, are not covered
under this Section, except in those cases where the local
government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs
and services. [Emphases supplied]
The essence of this express reservation of power by the national
government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which
funding has been provided by the national government under the
annual general appropriations act, even if the program involves the
delivery of basic services within the jurisdiction of the LGU. 269 A
complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied
as the Local Government Code itself weighs against it. 270
In this case, a reading of the RH Law clearly shows that whether it
pertains to the establishment of health care facilities, 271 the hiring
of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for
the funding of its implementation. Local autonomy is not absolute.
The national government still has the say when it comes to
national priority programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are
merely encouraged to provide these services. There is nothing in

the wording of the law which can be construed as making the

availability of these services mandatory for the LGUs. For said
reason, it cannot be said that the RH Law amounts to an undue
encroachment by the national government upon the autonomy
enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law
does not infringe upon its autonomy. Moreover, Article III, Sections
6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM,
alluded to by petitioner Tillah to justify the exemption of the
operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government.
These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government,
which can, in no manner, be characterized as an abdication by the
State of its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy granted
the ARMM, the Constitution and the supporting jurisprudence, as
they now stand, reject the notion of imperium et imperio in the
relationship between the national and the regional
governments.274 Except for the express and implied limitations
imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects
which extends to all matters of general concern or common
interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural
law,276 suffice it to say that the Court does not duly recognize it as
a legal basis for upholding or invalidating a law. Our only guidepost
is the Constitution. While every law enacted by man emanated
from what is perceived as natural law, the Court is not obliged to
see if a statute, executive issuance or ordinance is in conformity to
it. To begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed into a
written law, it cannot serve as a basis to strike down a law. In
Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to
examine every law or action and whether it conforms with both the
Constitution and natural law. Rather, natural law is to be used

115
sparingly only in the most peculiar of circumstances involving
rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction
the taking away of life. It does not allow abortion in any shape or
form. It only seeks to enhance the population control program of
the government by providing information and making nonabortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional
insofar as it seeks to provide access to medically-safe, nonabortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of what the law hopes
to achieve. After all, the Constitutional safeguard to religious
freedom is a recognition that man stands accountable to an
authority higher than the State.
In conformity with the principle of separation of Church and State,
one religious group cannot be allowed to impose its beliefs on the
rest of the society. Philippine modem society leaves enough room
for diversity and pluralism. As such, everyone should be tolerant
and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does
not escape the Court that what it seeks to address is the problem
of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population
but the unequal distribution of wealth. Even if population growth is
controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the
country in the long run. The European and Asian countries, which
embarked on such a program generations ago , are now burdened
with ageing populations. The number of their young workers is
dwindling with adverse effects on their economy. These young
workers represent a significant human capital which could have
helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are
still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is because we
have an ample supply of young able-bodied workers. What would

happen if the country would be weighed down by an ageing

population and the fewer younger generation would not be able to
support them? This would be the situation when our total fertility
rate would go down below the replacement level of two (2) children
per woman.280
Indeed, at the present, the country has a population problem, but
the State should not use coercive measures (like the penal
provisions of the RH Law against conscientious objectors) to solve
it. Nonetheless, the policy of the Court is non-interference in the
wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid
down. Its duty is to say what the law is as enacted by the
lawmaking body. That is not the same as saying what the law
should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the
wisdom of the law nor to question the policies adopted by the
legislative branch. Nor is it the business of this Tribunal to remedy
every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if
that would be necessary in the premises. But as always, with apt
judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution
and existing legislation and mindful of settled jurisprudence. The
Court's function is therefore limited, and accordingly, must confine
itself to the judicial task of saying what the law is, as enacted by
the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere
compilation and enhancement of the prior existing contraceptive
and reproductive health laws, but with coercive measures. Even if
the Court decrees the RH Law as entirely unconstitutional, there
will still be the Population Act (R.A. No. 6365), the Contraceptive
Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of
"no-abortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly,
the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL
except with respect to the following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR
insofar as they: a) require private health facilities and nonmaternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an

116
emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to modem
methods of family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the
RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs and
services on reproductive health regardless of his or her
religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in
the RH-IRR insofar as they allow a married individual, not in
an emergency or life-threatening case, as defined under
Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in
the RH-IRR insofar as they limit the requirement of parental
consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the
RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or lifethreatening case, as defined under Republic Act No. 8344,
to another health care service provider within the same
facility or one which is conveniently accessible regardless
of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RHIRR, particularly Section 5 .24 thereof, insofar as they
punish any public officer who refuses to support
reproductive health programs or shall do any act that
hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RHIRR regarding the rendering of pro bona reproductive
health service in so far as they affect the conscientious
objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which
added the qualifier "primarily" in defining abortifacients
and contraceptives, as they are ultra vires and, therefore,
null and void for contravening Section 4(a) of the RH Law
and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013
as extended by its Order, dated July 16, 2013 , is hereby LIFTED,
insofar as the provisions of R.A. No. 10354 which have been herein
declared as constitutional.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice

117

[G.R. No. 121139. July 12, 1996]

ISIDRO

B. GARCIA, petitioner, vs. COMMISSION

ELECTIONS and AUGUSTO GARCIA, respondents.

ON

DECISION
FRANCISCO, J.:
This is a petition for certiorari under Rule 65 seeking to nullify
the Resolution of the COMELEC en banc dated June 30, 1995[1] in
SPA No. 95-034 entitled "Isidro B. Garcia vs. Augusto M. Garcia," for
having been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction. The assailed resolution reversed the
previous Resolution of the Second Division of the COMELEC
promulgated on May 4, 1995,[2] wherein respondent Augusto M.
Garcia was declared a nuisance candidate resulting in the
cancellation of his certificate of candidacy for the mayoralty seat of
Tagig.
During the May 8, 1995 local elections, petitioner Isidro B.
Garcia and respondent Augusto M. Garcia were both candidates for
mayor in Tagig, Metro Manila. Claiming that respondent filed his
certificate of candidacy for no other legitimate purpose but to
cause confusion and disarray among the voters of Tagig
considering the similarity in their surname, petitioner filed a
petition with the COMELEC for the declaration of respondent as a
nuisance candidate pursuant to Section 69 of the Omnibus Election
Code.
In its Resolution dated May 4, 1995, the COMELEC (Second
Division) granted the petition and declared respondent as a
nuisance candidate. The COMELEC based its ruling on the
following: 1) dubious veracity of respondent's certificate of
nomination by the PDP-LABAN; 2) failure of respondent to actively
campaign; and 3) the absence of any campaign materials.

On May 10, 1995, two days after the election, respondent filed
a motion for reconsideration[3] with the COMELEC seeking the
reversal of the aforementioned resolution. In the meanwhile, the
canvassing of the election returns proceeded which eventually
resulted in the proclamation of petitioner on May 23, 1995 as the
winning candidate. However, another losing candidate, Ricardo
Papa filed a petition for annulment of the proclamation, and an
election protest as well, with the COMELEC and the Regional Trial
Court of Pasig, respectively, against petitioner.
On June 30, 1995, the COMELEC en banc promulgated the
assailed resolution, granting private respondent's motion for
reconsideration and reversing the previous resolution declaring
him a nuisance candidate, despite admitting that the motion has
been rendered moot and academic as a result of petitioner's
proclamation on May 23, 1995 as winning candidate.
The COMELEC discarded petitioner's claim that respondent
lacked the logistical means and machinery to pursue a serious
political campaign due to the absence of propaganda materials,
and ruled that such assumption has no bearing on the qualification
of respondent to seek public office.
Petitioner is now before us seeking to nullify and set aside the
resolution of the COMELEC en banc.
It is argued that the COMELEC gravely abused its discretion
when it granted respondent's motion for reconsideration despite
having been rendered moot and academic by the proclamation of
petitioner as duly elected mayor of Tagig. Petitioner bewails the
fact that the motion was granted with the end in view of benefiting
the pending electoral protest filed by losing candidate Ricardo Papa
who, according to petitioner, was the one who instigated and
conspired with respondent to run for mayor to confuse the voters
and undermine petitioner's chances of winning.
Private respondent however denies the abovementioned
imputation and contends that his only purpose in filing a motion for
reconsideration from the resolution declaring him a nuisance

118
candidate was solely to reacquire his legal status as a legitimate
and qualified candidate for public office.
Well entrenched is the rule that where the issues have
become moot and academic, there is no justiciable controversy,
thereby rendering the resolution of the same of no practical use or
value.[4]
Surprisingly, despite respondent COMELEC's admission that
private respondent's motion for reconsideration has already been
rendered moot and academic due to petitioner's proclamation as
duly elected mayor of Tagig in the May 8, 1995 elections, it
nevertheless resolved to grant the motion.
Obviously, the assailed resolution would no longer be of any
practical use or value to private respondent considering that he did
not even dispute the proclamation of petitioner as the winning
candidate. In fact, even private respondent's sole purpose in filing
his motion for reconsideration to regain his legal status as a
legitimate and qualified candidate for public office has been
rendered inconsequential as a result of petitioner's proclamation.
Petitioner was proclaimed mayor of Tagig as early as May 23,
1995, while the assailed resolution was promulgated by respondent
COMELEC on June 30, 1995. Undoubtedly, there was more that
ample opportunity for the COMELEC to be apprised of supervening
events that rendered private respondent's motion moot and
academic, which in turn should have guided it to properly deny the
motion. But having failed to do so, respondent COMELEC acted
with grave abuse of discretion in granting the motion.
ACCORDINGLY, the petition is hereby GRANTED. The
resolution of the COMELEC dated June 30, 1995 in SPA No. 95-034
is hereby SET ASIDE and a new one entered denying private
respondent's motion for reconsideration for being moot and
academic.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo,

Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur.

119
G.R. No. L-543
August 31, 1946
JOSE O. VERA, ET AL., petitioners,
vs.
JOSE A. AVELINO, ET AL., respondents.
Jose W. Diokno and Antonio Barredo for petitioners.
Vicente J. Francisco and Solicitor General Taada for respondents.
J. Antonio Araneta of the Lawyers' Guild as amicus curiae.
BENGZON, J.:
Pursuant to a constitutional provision (section 4, Article X), the
Commission on elections submitted, last May, to the President and
the Congress of the Philippines, its report on the national elections
held the preceding month, and, among other things, stated that,
by reason of certain specified acts of terrorism and violence in the
Provinces of Pampanga, Nueva Ecija, Bulacan and Tarlac, the voting
in said region did not reflect the true and free expression of the
popular will.
When the Senate convened on May 25, 1946, it proceeded with the
selection of its officers. Thereafter, in the course of the session, a
resolution was approved referring to the report and ordering that,
pending the termination of the protest lodged against their
election, the herein petitioners, Jose O. Vera, Ramon Diokno and
Jose E. Romero who had been included among the sixteen
candidates for senator receiving the highest number of votes,
proclaimed by the Commission on Elections shall not be sworn,
nor seated, as members of the chamber.
Pertinent parts of the resolution called Pendatun are these:
WHEREAS the Commission on Elections, charged under the
Constitution with the duty of insuring free, orderly, and
honest elections in the Philippines, reported to the
President of the Philippines on May 23, 1946, that
". . . Reports also reached this Commission to the
effect that in the Provinces of Bulacan, Pampanga,
Tarlac and Nueva Ecija, the secrecy of the ballot
was actually violated; the armed bands saw to it
that their candidates were voted for; and that the
great majority of the voters, thus coerced or
intimadated, suffered from a paralysis of
judgement in the matter of exercising the right of
suffrage; considering all those acts of terrorism,
violence and intimidation in connection with
elections which are more or less general in the
Provinces of Pampanga, Tarlac, Bulacan and Nueva
Ecija, this Commission believes that the election in
the provinces aforesaid did not reflect the true and

free expression of the popular will. It should be

stated, however, that the Commission is without
jurisdiction, to determine whether or not the votes
cast in the said provinces which, according to these
reports have been cast under the influence of
threats or violence, are valid or invalid. . . ."
WHEREAS, the minority report of the Hon. Vicente de Vera,
member of the Commission on Elections, says among other
things, that "we know that as a result of this chaotic
condition, many residents of the four provinces have
voluntarily banished themselves from their home towns in
order not to be subjected to the prevailing oppression and
to avoid being victimized or losing their lives"; and that
after the election dead bodies had been found with notes
attached to their necks, reading, "Bomoto kami kay Roxas"
(we voted for Roxas);
WHEREAS the same Judge De Vera says in his minority
report that in the four Provinces of Pampanga, Tarlac,
Bulacan and Nueva Ecija, the worst terrorism reigned
during and after the election, and that if the elections held
in the aforesaid provinces were annulled as demanded by
the circumstances mentioned in the report of the
Commission, Jose O. Vera, Ramon Diokno, and Jose
Romero, would not and could not have been declared
elected;
xxx
xxx
xxx
WHEREAS the terrorism resorted to by the lawless
elements in the four provinces mentioned above in order to
insure the election of the candidates of the Conservative
wing of the Nationalist Party is of public knowledge and
that such terrorism continues to this day; that before the
elections Jose O. Vera himself declared as campaign
Manager of the Osmea faction that he was sorry if
Presidential Candidate Manuel A. Roxas could not
campaign in the Huk provinces because his life would be
endangered; and that because of the constant murders of
his candidates and leaders, Presidential Candidate Roxas
found it necessary to appeal to American High
Commissioner Paul V. McNutt for protection, which appeal
American High Commissioner personallyreferred to
President Sergio Osme__a for appropriate action, and the
Presidentin turn ordered the Secretary of the existence and
reign of such terrorism;

120
WHEREAS the Philippines, a Republic State, embracing the
principles ofdemocracy, must condem all acts that seek to
defeat the popular will;
WHEREAS it is essential, in order to maintain alive the
respect fordemocratic institutions among our people, that
no man or group of men be permitted to profit from the
results of an election held under coercion, in violation of
law, and contrary to the principle of freedom of choice
which should underlie all elections under the Constitution;
WHEREAS protests against the election of Jose O. Vega,
Ramon Diokno, and Jose Romero, have been filed with the
electoral Tribunal of the Senate of the Philippines on the
basis of the findings of the Commission on Elections above
quoted;
NOW, THEREFORE, be it resolved by the Senate of the
Philippines in session assembled, as it hereby resolves, to
defer the administration of oath and the sitting of Jose O.
Vera, Ramon Diokno, and Jose Romero, pending the
hearing and decision on the protests lodged against their
elections, wherein the terrorism averred in the report of the
Commission on Elections and in the report of the Provost
Marshal constitutes the ground of said protests and will
therefore be the subject of investigation and
determination.
Petitioners immediately instituted this action against their
colleagues responsible for the resolution. They pray for an order
annulling it, and compelling respondents to permit them to occupy
their seats, and to exercise their senatorial prerogatives.
In their pleadings, respondents traverse the jurisdiction of this
court, and assert the validity of the Pendatun Resolution.
The issues, few and clear-cut, were thoroughly discussed at the
extended oral argument and in comprehensive memoranda
submitted by both sides.
A.NO JURISDICTION
Way back in 1924, Senator Jose Alejandrino assaulted a fellowmember in the Philippine Senate. That body, after investigation,
adopted a resolution, suspending him from office for one year. He
applied here for mandamus and injunction to nullify the suspension
and to require his colleagues to reinstate him. This court believed
the suspension was legally wrong, because, as senator appointed
by the Governor-General, he could not be disciplined by the
Philippine Senate; but it denied the prayer for relief, mainly upon
the theory of the separation of the three powers, Executive,

Legislative and Judicial. (Alejandrino vs. Quezon, 46 Phil., 81.) Said

the decision:
. . . Mandamus will not lie against the legislative body, its
members, or its officers, to compel the performance of
duties purely legislative in their character which therefore
pertain to their legislative functions and over which they
have exclusive control. The courts cannot dictate action in
this respect without a gross usurpation of power. So it has
been held that where a member has been expelled by the
legislative body, the courts have no power, irrespective of
whether the expulsion was right or wrong, to issue a
mandate to compel his reinstatement. (Code of civil
Procedure, section 222, 515; 18 R.C. L., 186, 187; Cooley,
Constitutional Limitations, 190; French vs. Senate [1905],
146 Cal; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex
parte Echols [1886], 39 Ala., 698; State vs. Bolte [1889],
151 Mo., 362; De Diego vs. House of Delegates [1904], 5
Porto Rico, 235; Greenwood Cemetery Land Co. vs. Routt
[1892], 17 Colo., 156; State ex rel. Crammer vs. Thorson
[1896], 33 L. R. A., ex rel. Bruce vs. Dunne [1913], 258 Ill.,
441; Peopleex rel. La Chicote vs. Best [1907], 187 N. Y., 1;
Abueva vs. Wood [1924], 45 Phil., 612.) (Supra, pp. 88, 89.)
. . . Under our form of government the judicial department
has no power to revise even the most arbitrary and unfair
action of the legislative department, or of either house
thereof, taken in pursuance of the power committed
exclusively to that department by the constitution. (Supra,
p. 93)
No court has ever held and we apprehend no court will
ever hold that it possesses the power to direct the Chief
Executive or the Legislature or a branch thereof to take any
particular action. If a court should ever be so rash as to
thus trench on the domain of either of the other
departments, it will be the end of popular government as
we know it in democracies. (Supra, p. 94.)
Conceding therefore that the power of the Senate to punish
its members for disorderly behavior does not authorize it to
suspend an appointive member from the exercise of his
office for one year, conceding what has been so well stated
by the learned counsel for the petitioner, conceding all this
and more, yet the writ prayed for cannot issue, for the allconclusive reason that the Supreme Court does not
possess the power of coercion to make the Philippine
Senate take any particular action. . . . (Supra, p. 97.)

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The same hands-off policy had been previously followed in
Severino vs. Governor-General and Provincial Board of Occidental
Negros (16 Phil., 366) and Abueva vs. Wood (45 Phil., 612)
At this point we could pretend to erudition by tracing the origin,
development and various applications of theory of separation of
powers, transcribing herein whole paragraphs from adjudicated
cases to swell the pages of judicial output. Yet the temptation must
be resisted, and the parties spared a stiff dose of juris prudential
lore about a principle, which, after all, is the first fundamental
imparted to every student of Constitutional Law.
Not that a passable excuse would be lacking for such a
dissertation. The advent of the Republic, and the consequent
finality of our views on constitutional issues, may call for a
definition of concepts and attitudes. But surely, there will be time
enough, as cases come up for adjudication.
Returning to the instant litigation, it presents no more than the
questions, whether the Alejandro doctrine still obtains, and
whether the admitted facts disclose any features justifying
departure therefrom.
When the Commonwealth Constitution was approved in 1935, the
existence of three coordinate, co-equal and co-important branches
of the government was ratified and confirmed. That Organic Act
contained some innovations which established additional
exceptions to the well-known separation of powers; for instance,
the creation of the Electoral Tribunal wherein Justices of the
Supreme Court participate in the decision of congressional election
protests, the grant of rule-making power to the Supreme Court,
etc.; but in the main, the independence of one power from the
other was maintained. And the Convention composed mostly of
lawyers (143 out of a total of 202 members), fully acquainted with
the Abueva, Alejandrino and Severino precedents did not choose
to modify their constitutional doctrine, even as it altered some
fundamental tenets theretofore well established.1
However, it is alleged that, in 1936, Angara vs. Electoral
Commission (63 Phil., 139), modified the aforesaid ruling. We do
not agree. There is no pronouncement in the latter decision,
making specific reference to the Alejandrino incident regarding our
power or lack of it to interfere with the functions of the
Senate. And three years later, in 1939, the same Justice Laurel,
who had penned it, cited Alejandrino vs. Quezon as a binding
authority of the separation of powers. (Planas vs. Gil, 67 Phil., 62.)
It must be stressed that, in the Angara controversy, no legislative
body or person was a litigant before the court, and whatever obiter
dicta, or general expressions, may therein found can not change

the ultimate circumstance that no directive was issued against a

branch of the Legislature or any member thereof.2 This Court, in
that case, did not require the National Assembly or any
assemblyman to do any particular act. It only found it "has
jurisdiction over the Electoral Commission." (Supra, 63 Phil., 161.)
That this court in the Angara litigation made declarations, nullifying
a resolution of the National Assembly, is not decisive. In proper
cases this court may annul any Legislative enactment that fails to
observe the constitutional limitations. That is a power conceded to
the judiciary since Chief Justice Marshall penned Marbury vs.
Madison in 1803. Its foundation is explained by Justice Sutherland
in the Minimum Wage Case (261 U. S., 544).Said the Court:
. . . The Constitution, by its own terms, is the supreme law
of the land, emanating from the people, the repository of
ultimate sovereignty under our form of government. A
congressional statute, on the other hand, is the act of an
agency of this sovereign authority, and if it conflicts with
the Constitution, must fall; for that which is not supreme
must yield to that which is. To hold it invalid (if it be invalid)
is a plain exercise of the judicial power, that power
vested in courts to enable them to administer justice
according to law. From the authority to ascertain and
determine the law in a given case there necessa ruly
results, in case of conflict, the duty to declare and enforce
the rule of the supreme law and reject that of an inferior
act of legislation which, transcending the Constitution, is
no effect, and binding on no one. This is not the exercise of
a substantive power to review and nullify acts of Congress,
for such no substantive power exists. It is simply a
necessary concomitant of the power to hear and dispose of
a case or controversy properly before the court, to the
determination of which must be brought the test and
measure of the law.
And the power is now expressly recognized by our Organic Act.
(See sections 2 and 10. Article VIII.)
But we must emphasize, the power is to be exercised in proper
cases, with the appropriate parties.
It must be conceded that the acts of the Chief executive
performed within the limits of his jurisdiction are his official
acts and courts will neither direct nor restrain executive
action in such cases. The rule is non-interference. But from
this legal premise, it does not necessarily follow that we
are precluded from making an inquiry into the validity or
constitutionality of his acts when these are properly

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challenged in an appropriate legal proceeding. . . . In the
present case, the President is not a party to the
proceeding. He is neither compelled nor restrained to actin
a particular way. . . . This court, therefore, has
jurisdiction over the instant proceedings and will
accordingly proceed to determine the merits of the present
controversy." (Planas vs. Gil., 67 Phil., 62, 73, 74, 76.)
(Emphasis ours.) (See also Lopez vs. De los Reyes, 55 Phil.,
170.)
More about the Angara precedent: The defendant there was only
the Electoral Commission which was "not a separate department of
the Government" (Vol. 63,p. 160), and exercised powers "judicial in
nature." (Supra, p. 184) Hence, against our authority, there was no
objection based on the independence and separation of the three
co-equal departments of Government. Besides, this court said no
more than that, there being a conflict ofjurisdiction between two
constitutional bodies, it could not decline to take cognizance of the
controversy to determine the "character, scope and extent" of their
respective constitutional spheres of action. Here, there is actually
no antagonism between the Electoral Tribunal of the Senate and
the Senate itself, for it is not suggested has adopted a rule
contradicting the Pendatun Resolution. Consequently, there is no
occasion for our intervention. Such conflict of jurisdiction, plus the
participation of the Senate Electoral Tribunal are essential
ingredients to make the facts of this case fit the mold of the
Angara doctrine.
Now, under the principles enunciated in the Alejandrino case, may
this petition be entertained? The answer must naturally be in the
negative. Granting that the postponement of the administration of
the oath amounts to suspension of the petitioners from their office,
and conceding arguendo that such suspension is beyond the power
of the respondents, who in effect are and acted as the Philippine
Senate (Alejandrino vs. Quezon, 46 Phil., 83, 88),this petition
should be denied. As was explained in the Alejandrino case, we
could not order one branch of the Legislature to reinstate a
member thereof. To do so would be to establish judicial
predominance, and to upset the classic pattern of checks and
balances wisely woven into our institutional setup.
Adherence to established principle should generally be our guiding
criterion, if we are to escape the criticism voiced once by Bryce in
American Commonwealth thus:
The Supreme Court has changed its color i. e., its temper
and tendencies, from time to time according to the political
proclivities of the men who composed it. . . . Their action

flowed naturally from the habits of thought they had

formed before their accession to the bench and from the
sympathy they could not feel for the doctrine on whose
behalf they had contended. (The Annals of the American
Academy of Political and Social Science, May, 1936, p. 50.)
Needless to add, any order we may issue in this case should,
according to the rules, be enforceable by contempt proceedings. If
the respondents should disobey our order, can we punish them for
contempt? If we do, are we not thereby destroying the
independence, and the equal importance to which legislative
bodies are entitled under the Constitution?
Let us not be overly influenced by the plea that for every wrong
there is are medy, and that the judiciary should stand ready to
afford relief. There are undoubtedly many wrongs the judicature
may not correct, for instance, those involving political questions.
Numerous decisions are quoted and summarized under this
heading in 16 Corpus Juris Secundum, section 145.
Let us likewise disabuse our minds from the notion that the
judiciary is the repository of remedies for all political and social ills.
We should not forget that the Constitution had judiciously allocated
the powers of government to three distinct and separate
compartments; and that judicial interpretation has tended to the
preservation of the dependence of the three, and a zealous regard
of the prerogatives of each, knowing full well that one is not the
guardian of the others and that, for official wrong-doing, each may
be brought to account, either by impeachment, trial or by the
ballot box.
The extreme case has been described wherein a legislative
chamber, without any reason whatsoever, decrees by resolution
the incarceration, for years, of a citizen. And the rhetorical
question is confidently formulated. Will this man be denied relief by
the courts?
Of course not: He may successfully apply for habeas corpus,
alleging the nullity of the resolution and claiming for release. But
then, the defendant shall be the officer or person, holding him in
custody, and the question therein will be the validity or invalidity of
resolution. That was done in Lopez vs. De los Reyes, supra. (See
also Kilbourn vs. Thompson, 103 U.S. 168; 26 Law. ed., 377, p.
391.) Courts will interfere, because the question is not a political
one, the "liberty of citizen" being involved (Kilbourn vs.
Thompson, supra) and the act will clearly beyond the bounds of the
legislative power, amounting to usurpation of the privileges of the
courts, the usurpation being clear, palpable and oppressive and

123
the infringement of the Constitution truly real. (See 16 C.J.S., p.
44.)
Nevertheless, suppose for the moment that we have jurisdiction:
B.PROHIBITION DOES NOT LIE
Petitioners pray for a writ of prohibition. Under the law, prohibition
refers only to proceedings of any tribunal, corporation, board, or
person, exercising functions judicial or ministerial. (Rule 67, section
2, Rules of Court.) As the respondents do not exercise such kind of
functions, theirs being legislative, it is clear the dispute falls
beyond the scope of such special remedy.
C.SENATE HAS NOT EXCEEDED POWERS
Again let us suppose the question lies within the limits of
prohibition and of our jurisdiction.
Before the organization of the Commonwealth and the
promulgation of the Constitution, each House of the Philippine
Legislature exercised the power to defer oath-taking of any
member against whom a protest had been lodged, whenever in its
discretion such suspension was necessary, before the final decision
of the contest. The cases of Senator Fuentebella and
Representative Rafols are known instances of such suspension. The
discussions in the constitutional Convention showed that instead of
transferring to the Electoral Commission all the powers of the
House or Senate as "the sole judge of the election, returns, and
qualifications of the members of the National Assembly," it was
given only jurisdiction over "all contests" relating to the election,
etc. (Aruego, The Framing of the Philippine Constitution, Vol. I, p.
271.) The proceedings in the Constitutional Convention on this
subject are illuminating:
It became gradually apparent in the course of the debates
that the Convention was evenly divided on the proposition
of creating the Electoral Commission with the membership
and powers set forth in the draft. It was growing evident,
too, that the opposition to the Electoral Commission was
due to rather inclusive power of that body to judge not only
of cases contesting the election of the members of the
National Assembly, but also of their elections, returns, and
qualifications.
Many of the delegates wanted to be definitely informed of the
scope of the powers of the Electoral Commission as defined in the
draft before determining their final decision; for if the draft meant
to confer upon the Electoral Commission the inclusive power to
pass upon the elections, returns, and qualifications contested or
not of the members of the National Assembly, they were more

inclined to vote against the Electoral Commission. In an attempt to

seek this clarification, the following interpretations took place:
xxx
xxx
xxx
Delegate Labrador.Does not the gentleman from Capiz
believe that unless this power is granted to the assembly,
the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Delegate Roxas.I have no doubt that the gentleman is
right. If this right is retained, as it is, even if two-thirds of
the assembly believe that a member has not the
qualifications provided by law, they cannot remove him
from that reason.
xxx
xxx
xxx
In the course of the heated debates, with the growing
restlessness on the part of the Convention, President Recto
suspended the session in order to find out if it was possible
to arrive at a compromise plan to meet the objection.
When the session was resumed, a compromise plan was
submitted in the form of an amendment presented by
Delegates Francisco, Ventura, Lim, Vinzons, Rafols, Mumar,
and others, limiting the power of the Electoral Commission
to the judging of all cases contesting elections, returns,
and qualifications of members of the National Assembly.
Explaining the difference between the amendment thus
proposed and the provision of the draft, Delegate Roxas,
upon the request of President Recto, said:
The difference, Mr. President, consists only in obviating the
objection pointed out by various delegates to the effect
that the first clause of the draft which states "The election,
returns, and qualifications of members of the National
Assembly" seems to give to the Electoral commission the
power to determine also the election of the members who
have not been protested. And in order to obviate that
difficulty, we believe that the amendment is right in that
sense . . . that is, if we amend the draft so that it should
read as follows: "All cases contesting the election, etc.", so
that the judges of the Electoral Commission will limit
themselves only to cases in which there has been a protest
against the returns.
The limitation to the powers of the Electoral Commission
proposed in the compromise amendment did much to win
in favor of the Electoral Commission many of its
opponents; so that when the amendment presented by
Delegate Labrador and others to retain in the Constitution

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the power of the lawmaking body to be the sole judge of
the elections, returns, and qualifications of its members
was put to a nominal vote, it was defeated by 98 negative
votes against 56 affirmative votes.
With the defeat of the Labrador amendment, the provision
of the draft creating the Electoral Commission, as modified
by the compromise amendment, was consequently
approved.
"All cases contesting the elections, returns and
qualifications of the members of the National Assembly
shall be judged by an electoral commission, composed of
three members elected by the party having the largest
number of votes in the National Assembly, three elected by
the members of the party having the second largest
number of votes, and three justices of the Supreme Court
designated by the Chief, the Commission to be presided
over by one of said justices."
In the special committee on style, the provision was
amended so that the Chairman of the Commission should
be the senior Justice in the Commission, and so that the
Commission was to be the sole judge of the election,
returns, and qualifications of the members of the National
Assembly. As it was then amended, the provision read:
"There shall be an Electoral Commission composed
of three Justices of the Supreme court designated
by the Chief Justice, and of six Members chosen by
the National Assembly, three of whom shall be
nominated by the party having the largest number
of votes, and three by the party having the second
largest number of votes therein. The senior Justice
in the Commission shall be its Chairman. The
Electoral Commission shall be the sole judge of the
election, returns, and qualifications of the
Members of the National Assembly."
The report of the special committee on style on the power
of the Commission was opposed on the floor of the
Convention by Delegate Confesor, who insisted that the
Electoral Commission should limit itself to judging only of
all contests relating to the elections, returns, and
qualifications of the members of the National Assembly.
The draft was amended accordingly by the Convention.
As it was finally adopted by the Convention, the provision
read:

There shall be an Electoral Commission . . . The Electoral

Commission shall be the sole judge of all contests relating
to the election, returns, and qualifications of the Members
of the National Assembly. (Aruego, The Framing of the
Philippine Constitution, Vol. I, pp. 267, 269, 270, 271 and
272.).
Delegate Roxas rightly opined that "if this draft is retained" the
Assembly would have no power over election and qualifications of
its members; because all the powers are by the draft vested in the
Commission.
The Convention, however, bent on circumscribing the latter's
authority to "contests" relating to the election, etc. altered the
draft. The Convention did not intend to give it all the functions of
the Assembly on the subject of election and qualifications of its
members. The distinction is not without a difference. "As used in
constitutional provisions", election contest "relates only to
statutory contests in which the contestant seeks not only to oust
the intruder, but also to have himself inducted into the
office."(Laurel on Elections, Second Edition, p. 250; 20 C.J., 58.)
One concrete example will serve to illustrate the remaining power
in either House of Congress: A man is elected by a congressional
district who had previously served ten years in Bilibid Prison
for estafa. As he had no opponent, no protest is filed. And the
Electoral Tribunal has no jurisdiction, because there is no election
contest. (20 C.J., 58, supra.) When informed of the fact, may not
the House, motu propio postpone his induction? May not the House
suspend, investigate and thereafter exclude him?3 It must be
observed that when a member of the House raises a question as to
the qualifications of another, an "election contest" does not
thereby ensue, because the former does not seek to be substituted
for the latter.
So that, if not all the powers regarding the election, returns, and
qualifications of members was withdrawn by the Constitution from
the Congress; and if, as admitted by petitioners themselves at the
oral argument, the power to defer the oath-taking, until the
contests is adjudged, does not belong to the corresponding
Electoral Tribunal, then it must be held that the House or Senate
still retains such authority, for it has not been transferred to, nor
assumed by, the Electoral Tribunal. And this result flows, whether
we believe that such power (to delay induction) stemmed from the
(former) privilege of either House to be judge of the election,
returns, and qualifications of the members thereof, or whether we
hold it to be inherent to every legislative body as a measure of selfpreservation.

125
It is customary that when a number of persons come together to
form a legislative body, ". . . the first organization must be
temporary, and if the law does not designate the person who shall
preside over such temporary organization, the persons assembled
and claiming to be members may select one of their number for
that purpose. The next step is to ascertain in some convenient way
the names of the person who are, by reason of holding the proper
credentials, prima facie entitled to seats, and therefore entitled to
take part in permanent organization of the body. In the absence of
any statutory or other regulation upon this subject, a committee on
credentials is usually appointed, to whom all credentials to be
entitled to seats. . . . (Laurel on Elections, Second Edition, pp. 356,
357, quoting McCrary on Elections.)
Therefore, independently of constitutional or statutory grant, the
Senate has, under parliamentary practice, the power to inquire into
the credentials of any member and the latter's right to participate
in its deliberations. As we have seen, the assignment by the
constitution of the Electoral Tribunal does not actually negative
that power provided the Senate does not cross the boundary
line, deciding an election contest against the member. Which the
respondents at bar never attempted to do. Precisely, their
resolution recognized, and did not impair, the jurisdiction of the
Electoral Tribunal to decide the contest. To test whether the
resolution trenched on the territory of the last named agency let
ask the question: May the Electoral Tribunal of the Senate order
that Body to defer the admission of any member whose election
has been contested? Obviously not. Then it must be conceded that
the passage of the disputed resolution meant no invasion of the
former's realm.
At this juncture the error will be shown of the contention that the
Senate has not this privilege "as a residuary power". Such
contention is premised on the proposition that the Houses of the
Philippine Congress possess only such powers as are expressly or
impliedly granted by the Constitution. And an American decision is
quoted on the powers of the United States Congress. The mistake
is due to the failure to differentiate between the nature of
legislative power under the Constitution of the United States, and
legislative power under the State Constitutions and the
Constitution of the Commonwealth (now the Republic). It must be
observed that the Constitution of the United States contains only
a grant or delegation of legislative powers to the Federal
Government, whereas, the other Constitutions, like the Constitution
of the Commonwealth (now the Republic), are limits upon the
plenary powers of legislation of the Government. The legislative

power of the United States Congress is confined to the subject on

which it is permitted to act by the Federal constitution. (Dorr vs.
United States, 195 U. S., 140; Martinvs. Hunter, 1 Wheat., 326;
McCullock vs. Maryland, 4 Wheat., 405; United States vs.
Cruikshank, 92 U.S., 551.) The legislative power of the Philippine
Congress is plenary, subject only to such limitations, as are found
in the Republic's Constitution. So that any power, deemed to be
legislative by usage and tradition, is necessarily possessed by the
Philippine Congress, unless the Organic Act has lodged it
elsewhere.
Another line of approach. The Senate, as a branch of the legislative
department, had the constitutional power to adopt rules for its
proceedings(section 10 [3], Article VI of the Constitution), and by
legislative practice it is conceded the power to promulgate such
orders as may be necessary to maintain its prestige and to
preserve its dignity.4 We are advised by the respondents that, after
weighing the propriety or impropriety of the step, the Senate, in
the exercise of its authority and discretion and of its inherent
power of self-preservation, resolved to defer the administration of
oath and the sitting of the petitioners pending determination of the
contest. It is not clear that the measure had no reasonable
connection with the ends in view, and neither does it palpably
transcend the powers of the public deliverative body. On the
contrary, there are reasons to believe it was prompted by the
dictates of ordinary caution, or of public policy. For, if, as reported
by the corresponding constitutional agency, concededly wellposted on the matter by reason of its official duties, the elections
held in the Provinces of Pampanga, Bulacan, Tarlac, and Nueva
Ecija were so tainted with acts of violence and intimidation, that
the result was not the legitimate expression of the voters' choice,
the Senate made no grievous mistake in foreseeing the probability
that, upon proof of such widespread lawlessness, the Electoral
Tribunal would annull the returns in that region (see Gardiner vs.
Romulo, 26 Phil., 521; Laurel, Elections [2d ed.], p. 488et seq.), and
declare herein petitioners not entitled to seats in the Senate.
Consequently, to avoid the undesirable result flowing from the
participation of disqualified members in its deliberations, it was
prudent for it to defer the sitting of the respondents. True, they
may have no direct connection with the acts of intimidation; yet
the votes may be annulled just the same, and if that happens,
petitioners would not among the sixteen senators elected. Nor was
it far-fetched for the Senate to consider that "in order to maintain
alive the respect for democratic institutions among our people, no
man or group of men (should) be permitted to profit from the

126
results of an election held under coercion, in violation of law and
contrary to the principle of freedom of choice which should
underlie all elections under the Constitution." (Exhibit A of
petitioners' complaint.)
a. Justices in the Electoral Tribunals
During our deliberations, it was remarked that several justices
subscribing the majority opinion, belong to the electoral tribunals
wherein protests connected with the Central Luzon polls await
investigation. Mulling over this, we experience no qualmish
feelings about the coincidence. Their designation to the electoral
tribunals deducted not a whit from their functions as members of
this Supreme Court, and did not disqualify them in this litigation.
Nor will their deliverances here at on a given question operate to
prevent them from voting in the electoral forum on identical
questions; because the Constitution, establishing no
incompatibility between the two roles, naturally did not
contemplate, nor want, justices opining one way here, and
thereafter holding otherwise, pari materia, in the electoral
tribunals, or vice-versa.
Anyhow, these should be no diversity of thought in a democratic
country, at least, on the legal effects of the alleged rampant
lawlessness, root and basis of the Pendatun Resolution.
However, it must be observed and emphasized, herein is no
definite pronouncement that terrorism and violenceactually
prevailed in the district to such extent that the result was not the
expression of the free will of the electorate. Such issue was not
tendered in these proceedings. It hinges upon proof to be produced
by protestants and protestees at the hearing of the respective
contests.
b. Doubt and presumption.
After all is said or written, the most that may be conceded to the
industry of petitioners' counsel is that the Senate power, or lack of
power, to approve the resolution is not entirely clear. We should,
therefore, indulge the presumption that official duty has been
performed regularly, (Rule 123, section 69, Rule of Court), and in
the right manner:
It is a general principle to presume that public officers act
correctly until the contrary is shown. United States vs.
Weed, 5 Wall., 62.
It will be presumed, unless the contrary be shown, that a
public officer acted in accordance with the law and his
instructions. Moral y Gonzales vs. Ross (Gonzales vs. Ross),
120 U.S., 605; 7 Sup. Ct. Rep., 705.

Officers charged with the performance of a public duty are

presumed to perform it correctly. Quinlan vs. Greene
Country, 205 U.S., 410; 27 Sup. Ct. Rep., 505. (United State
Supreme Court Reports Digest, Vol. 5, p. 3188.)
It is presumed that the legislature has acted within its
constitutional powers. (See cases cited at p. 257, 16 C.J.S.,
note 1.)
And should there be further doubt, by all the maxims of prudence,
left alone comity, we should heed the off-limits sign at the
Congressional Hall, and check the impulse to rush in to set matters
aright firm in the belief that if a political fraud has been
accomplished, as petitioners aver, the sovereign people, ultimately
the offended party, will render the fitting verdict at the polling
precints.
c. Membership in the Constitutional Convention
The theory has been proposed modesty aside that the
dissenting members of this Court who were delegates to the
Constitutional Convention and were "co-authors of the
Constitution" "are in a better position to interpret" that same
Constitution in this particular litigation.
There is no doubt that their properly recorded utterances during
the debates and proceedings of the Convention deserve weight,
like those of any other delegate therein. Note, however, that the
proceedings of the Convention "are less conclusive of the power
construction of the instrument than are legislative proceedings of
the proper construction of a statute; since in the latter case it is
the intent of the legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through the
discussions and deliberations of their representatives. (Willoughby
on the Constitution, Vol. I, pp. 54, 55.)
Their writings (of the delegates) commenting or explaining that
instrument, published shortly thereafter, may, like those of
Hamilton, Madison and Jayin The Federalist here in the
Philippines, the book of Delegate Aruego,supra, and of others
have persuasive force. (Op. cit., p. 55.)
But their personal opinion on the matter at issue expressed during
our deliberations stand on a different footing: If based on a "fact"
known to them, but not duly established or judicially cognizable, it
is immaterial, and their brethren are not expected to take their
word for it, to the prejudice of the party adversely affected, who
had no chance of rebuttal. If on a matter of legal hermeneutics,
their conclusions may not, simply on account of membership in the
Convention, be a shade better, in the eyes of the law. There is the

127
word "deference" to be sure. But deference is a compliment
spontaneously to be paid never a tribute to be demanded.
And if we should (without intending any disparagement) compare
the Constitution's enactment to a drama on the stage or in actual
life, we would realize that intelligent spectators or readres often
know as much, if not more, about the real meanings, effects or
tendency is of the event, or incidents thereof, as some of the
actors themselves, who sometimes become so absorbed in
fulfilling their emotional roles that they fail to watch the other
scenes or to meditate on the larger aspects of the whole
performance, or what is worse, become so infatuated with their
lines as to construe the entire story according to their prejudices or
frustrations. Perspective and disinterestedness help certainly a lot
in examining actions and occurrences.
Come to think of it, under the theory thus proposed, Marshall and
Holmes (names venerated by those who have devoted a sizable
portion of their professionals lives to analyzing or solving
constitutional problems and developments) were not so
authoritative after all in expounding the United States Constitution
because they were not members of the Federal Convention that
framed it!
D.ALLEGED DUTY OF RESPONDENTS
Quoting section 12 of Commonwealth Act No. 725, counsel for
petitioners assert that it was respondents' duty legally inescapable,
to permit petitioners to assume office and take part in the current
regular session. The section reads partly:
The candidates for Member of the House of
Representatives and those for Senators who have been
proclaimed elected by the respective Board of Canvassers
and the Commission on Elections shall assume office and
shall hold regular session for the year nineteen hundred
and forty-six on May twenty-five, nineteen hundred and
forty-six. (Section 12, Commonwealth Act. No. 725.)
We have carefully considered the argument. We opine that, as
contended by the Solicitor-General, this provision is addressed to
the individual member of Congress, imposing on him the obligation
to come to Manila, and join his colleagues in regular session.
However, it does not imply that if, for any reason, he is
disqualified, the House is powerless to postpone his admission.
Suppose that after elections a member is finally convicted of
treason. May not the House refuse him outright admission, pending
an investigation (by it or the Electoral Tribunal as the case may be)
as to his privilege to sit there? Granting the right to admission as
the counterpart of the duty to assume office by virtue of said

section 12; we must nevertheless allow that such rights would not
be peremptory whenever it contacts other rights of equal or
superior force. To illustrate: if the law provided that all children,
seven years or more "shall go to school", it can not reasonably be
inferred that school authorities are bound to accept every sevenyear boy, even if he refuses to pay fees, or to present the
certificates required by school regulations.
Furthermore, it would not be erroneous to maintain that any right
spelled out of section 12 must logically be limited to those
candidates whose proclamation is clear, unconditional and
unclouded, and that such standard is not met by the petitioners,
because in the very document attesting to their election one
member of the Commission on Elections demurred to the nonexclusion of the votes in Central Luzon, calling attention to the
reported reign of terror and violence in that region, and virtually
objecting to the certification of herein petitioners. To be sure, it was
the beclouded condition of petitioner's credential (certificate of
canvass) that partly prompted the Senate to enact the
precautionary measure herein complained of. And finding no
phrase or sentence in the Constitution expressly or impliedly
outlawing the step taken by that legislative body, we should be,
and we are, reluctant to intervene.
Indeed, had the Senate been officially informed that the inclusion
of petitioners' name in the Commission's certificate had been
made at the point of a gangster's automatic, none will deny the
appositeness of the postponement of their induction, pending an
inquiry by the corresponding authorities. Yet the difference
between such situation and the instant litigation is one of degree,
broad and wide perhaps, but not altering the dominant legal
principle.
In answer to the suggestions as to abuse of the power it should be
stated that the mere possibility of abuse is no conclusive argument
against the existence of the power, of the power, for the simple
reason that every official authority is susceptible of misuse. And
everybody knows that when any people will discover the methods
to curb it.
Perhaps it is necessary to explain that this decision goes no further
than to recognize the existence of Congressional power. It is settled
that the point whether such power has been wisely or correctly
exercised, is usually beyond the ken of judicial determination.
E.PARLIAMENTARY PRIVILEGES
One final consideration.
The Constitution provides (Article VI, section 15) that "for any
speech or debate" in congress, Senators and congressmen "shall

128
not be questioned in any other place." The Supreme Court of the
United States has interpreted this privilege to include the giving of
a vote or the presentation of a resolution.
. . . It would be a narrow view of the constitutional
provision to limit it towards spoken in debate. The reason
of the rule is as forcible in its application to written reports
presented in that body by its committees, to resolutions
offered, which, though in writing, must be reproduced in
speech, and to the act of voting, . . . (Kilbourn vs.
thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.)
In the above case, Kilbourn, for refusing to answer questions put to
him by the House of Representatives of the United States
Congress, concerning the business of a real estate partnership,
was imprisoned for contempt by resolution of the house. He sued
to recover damages from the sergeant at arms and the
congressional members of the committee, who had caused him to
be brought before the house, where he was adjudged to be in
contempt. The Supreme Court of the United States found that the
resolution of the House was void for want of jurisdiction in that
body, but the action was dismissed as to the members of the
committee upon the strength of the herein above-mentioned
congressional immunity. The court cited with approval the following
excerpts from an earlier decision of the Supreme Court of
Massachusetts:
These privileges are thus secured, not with the intention of
protecting the members against prosecutions for their own
benefit, but to support the rights of the people, by enabling
their representatives to execute the functions of their
office without fear of prosecutions, civil or criminal. I,
therefore, think that the article ought not to be construed
strictly, but liberally, that the full design of it may be
answered. . . (103 U.S., 203.) (Emphasis ours.)
Commenting on this Congressional privilege, Willoughby relates
apparently as controlling, the following incident:
In 1910, several Members of Congress having been served
with a writ of mandamus in a civil action brought against
them as members of the Joint Committee on Printing and
growing out a refusal of a bid of the Valley Paper Company,
for the furnishing of paper, the Senate resolved that the
Justice issuing the writ had "unlawfully invaded the
constitutional privileges and prerogatives of the Senate of
the United States and of three Senators; and was without
jurisdiction to grant the rule, and Senators are directed to
make no appearance in response thereto." (Willoughby on

the Constitution of the United States, Vol. I, Second Edition,

p. 616.)
Respondents are, by this proceeding, called to account for their
votes in approving the Pendatum Resolution. Having sworn to
uphold the Constitution, we must enforce the constitutional
directive. We must not question, nor permit respondents to be
questioned here in connection with their votes. (Kilbourn vs.
Thompson, supra.)
Case dismissed. No costs.
Moran, C J., Paras, Pablo, and Padilla, JJ., concur.

129

G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M.

DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader,
AQUILINO Q. PIMENTEL, JR., in his capacity as Minority
Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA
S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI"
EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J.
GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR
ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary
and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of
the Philippines,Respondents.

April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR.,

Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL
MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND
GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) represented by ATTY. REMEDIOS
BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary
and alter-ego of President Gloria MacapagalArroyo, Respondent.
x-------------------------x
G.R. No. 169660

x-------------------------x
G.R. No. 169667

April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.
x-------------------------x
G.R. No. 169834

x-------------------------x
G.R. No. 169659

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of
Defense, and GENEROSO S. SENGA, in his capacity as AFP
Chief of Staff, Respondents.

April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO

R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE PHILIPPINES,Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.

April 20, 2006

DECISION

130
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly
republican state. Even in the early history of republican thought,
however, it has been recognized that the head of government may
keep certain information confidential in pursuit of the public
interest. Explaining the reason for vesting executive power in only
one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much
more eminent degree than the proceedings of any greater number;
and in proportion as the number is increased, these qualities will
be diminished."1
History has been witness, however, to the fact that the power to
withhold information lends itself to abuse, hence, the necessity to
guard it zealously.
The present consolidated petitions for certiorari and prohibition
proffer that the President has abused such power by issuing
Executive Order No. 464 (E.O. 464) last September 28, 2005. They
thus pray for its declaration as null and void for being
unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a coequal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is
found to be indeed violative of the Constitution, it is duty-bound to
declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any
issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for, inter
alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces
of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a

whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of the
North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project).
The public hearing was sparked by a privilege speech of Senator
Juan Ponce Enrile urging 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,

131
by letter3 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
letter4 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, wrote5 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
letter6 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);

132
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.
SECTION 3. Appearance of Other Public Officials Before Congress.
All public officials enumerated in Section 2 (b) hereof shall secure
prior consent of the President prior to appearing before either
House of Congress to ensure the 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 inquiries in
aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another
letter8 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."
Despite the communications received from Executive Secretary
Ermita and Gen. Senga, the investigation scheduled by the
Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials
invited attending.
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

133
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.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the
Defense of Liberties (CODAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance
of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary
and alter-ego of President Arroyo, be prohibited from imposing, and
threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners
claim that E.O. 464 infringes on their rights and impedes them
from fulfilling their respective obligations. Thus, Bayan Muna
alleges that E.O. 464 infringes on its right as a political party
entitled to participate in governance; Satur Ocampo, et al. allege
that E.O. 464 infringes on their rights and duties as members of
Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws; Courage alleges
that the tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464
should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their
rights to information and to transparent governance are threatened
by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are
affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.
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
letter15 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

134
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
Management18 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 Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however, Secretary
Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent
members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the Philippines
as the official organization of all Philippine lawyers, all invoking
their constitutional right to be informed on matters of public
interest, filed their petition for certiorari and prohibition, docketed
as G.R. No. 171246, and pray that E.O. 464 be declared null and
void.
All the petitions pray for the issuance of a Temporary Restraining
Order enjoining respondents from implementing, enforcing, and
observing E.O. 464.
In the oral arguments on the petitions conducted on February 21,
2006, the following substantive issues were ventilated: (1) whether
respondents committed grave abuse of discretion in implementing
E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates
the following provisions of the Constitution: Art. II, Sec. 28, Art. III,

Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec.
22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of
whether there is an actual case or controversy that calls for judicial
review was not taken up; instead, the parties were instructed to
discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were
directed to submit their respective memoranda, paying particular
attention to the following propositions: (1) that E.O. 464 is, on its
face, unconstitutional; and (2) assuming that it is not, it is
unconstitutional as applied in four instances, namely: (a) the so
called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on the
Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No.
16966725 and G.R. No. 16983426 filed theirs the next day or on
March 8, 2006. Petitioners in G.R. No. 171246 did not file any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion
for extension to file memorandum27 was granted, subsequently
filed a manifestation28 dated March 14, 2006 that it would no
longer file its memorandum in the interest of having the issues
resolved soonest, prompting this Court to issue a Resolution
reprimanding them.29
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133

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Art. III, Sec. 734

the earliest opportunity; and (4) the issue of constitutionality must

be the very lis mota of the case.39

Art. III, Sec. 435

Art. XIII, Sec. 16

36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand,
pray in their consolidated memorandum 38 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. Whether E.O. 464 contravenes the power of inquiry
vested in Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and
3. Whether respondents have committed grave abuse of
discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
E.O. 464, ascertainment of whether the requisites for a valid
exercise of the Courts power of judicial review are present is in
order.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have standing to challenge
the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at

Except with respect to the requisites of standing and existence of

an actual case or controversy where the disagreement between
the parties lies, discussion of the rest of the requisites shall be
omitted.
Standing
Respondents, through the Solicitor General, assert that the
allegations in G.R. Nos. 169659, 169660 and 169667 make it clear
that they, adverting to the non-appearance of several officials of
the executive department in the investigations called by the
different committees of the Senate, were brought to vindicate the
constitutional duty of the Senate or its different committees to
conduct inquiry in aid of legislation or in the exercise of its
oversight functions. They maintain that Representatives Ocampo et
al. have not shown any specific prerogative, power, and privilege of
the House of Representatives which had been effectively impaired
by E.O. 464, there being no mention of any investigation called by
the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing
the marginalized and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing as
advocates and defenders of the Constitution, respondents contend
that such interest falls short of that required to confer standing on
them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez
may not claim an interest as a taxpayer for the implementation of
E.O. 464 does not involve the exercise of taxing or spending
power.41
With regard to the petition filed by the Senate, respondents argue
that in the absence of a personal or direct injury by reason of the
issuance of E.O. 464, the Senate and its individual members are
not the proper parties to assail the constitutionality of E.O. 464.

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Invoking this Courts ruling in National Economic Protectionism
Association v. Ongpin42 and Valmonte v. Philippine Charity
Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in
the case, such that he has sustained or will sustain direct injury
due to the enforcement of E.O. 464.44

constituencies to contribute to the formulation and enactment of

legislation that will benefit the nation.48

That the Senate of the Philippines has a fundamental right

essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation 45 is
not disputed. E.O. 464, however, allegedly stifles the ability of the
members of Congress to access information that is crucial to lawmaking.46 Verily, the Senate, including its individual members, has
a substantial and direct interest over the outcome of the
controversy and is the proper party to assail the constitutionality of
E.O. 464. Indeed, legislators have standing to maintain inviolate
the prerogative, powers and privileges vested by the Constitution
in their office and are allowed to sue to question the validity of any
official action which they claim infringes their prerogatives as
legislators.47

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 rights51 and to the maintenance of
the balance of power among the three branches of the government
through the principle of checks and balances.52

In the same vein, party-list representatives Satur Ocampo (Bayan

Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna),
Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza
Maza (Gabriela) are allowed to sue to question the constitutionality
of E.O. 464, the absence of any claim that an investigation called
by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it
being sufficient that a claim is made that E.O. 464 infringes on
their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the
standing requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared
policy underlying the party list system of affording citizens
belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political

As Bayan Muna and Representatives Ocampo et al. have the

standing to file their petitions, passing on the standing of their copetitioners Courage and Codal is rendered unnecessary.49

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

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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, PDPLabans alleged interest as a political party does not suffice to
clothe it with legal standing.

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.

Actual Case or Controversy

Constitutionality of E.O. 464

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.

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.

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.

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.

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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.
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct inquiries
in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial
review pursuant to the Courts certiorari powers under Section 1,
Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress.
Such inquiry could not usurp judicial functions. Parenthetically, one
possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such
statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision requires
that the inquiry be done in accordance with the Senate or Houses
duly published rules of procedure, necessarily implying the

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constitutional infirmity of an inquiry conducted without duly
published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon
the proper suit filed by the persons affected, even if they belong to
the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a
clear pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill
of Rights. In such instances, depending on the particulars of each
case, attempts by the Executive Branch to forestall these abuses
may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which exemptions
fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its
provisions, its preambular clauses,62 and in its very title, a
discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege is, nonetheless, not a clear or unitary

concept. 66 It has encompassed claims of varying kinds.67 Tribe, 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:

Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature of
the United States.
Schwartz defines executive privilege as "the power of the
Government to withhold information from the public, the courts,
and the Congress."64 Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public." 65

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.

140
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 intragovernmental 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 determining the validity of a claim of
privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges,
but also whether that privilege should be honored in a given
procedural setting.71
The leading case on executive privilege in the United States is U.S.
v. Nixon, 72 decided in 1974. In issue in that case was the validity of
President Nixons claim of executive privilege against a subpoena
issued by a district court requiring the production of certain tapes
and documents relating to the Watergate investigations. The claim
of privilege was based on the Presidents general interest in the
confidentiality of his conversations and correspondence. The U.S.
Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based
to the extent that it relates to the effective discharge of a
Presidents powers. The Court, nonetheless, rejected the
Presidents claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it was
not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege
against Congress are rare.73 Despite frequent assertion of the
privilege to deny information to Congress, beginning with President
Washingtons refusal to turn over treaty negotiation records to the

House of Representatives, the U.S. Supreme Court has never

adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same
year as Nixon, recognized the Presidents privilege over his
conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the
claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez.77Almonte used the
term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixon decision which explains the basis
for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all citizens
and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers
under the Constitution x x x " (Emphasis and underscoring
supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not involve, as
expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are
certain types of information which the government may withhold
from the public, thus acknowledging, in substance if not in name,
that executive privilege may be claimed against citizens demands
for information.

141
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes
the common law holding that there is a "governmental privilege
against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters." 80 The
same case held that closed-door Cabinet meetings are also a
recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled
that the right to information does not extend to matters recognized
as "privileged information under the separation of powers,"82 by
which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings.
It also held that information on military and diplomatic secrets and
those affecting national security, and information on investigations
of crimes by law enforcement agencies before the prosecution of
the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive
privilege, both in the United States and in this jurisdiction, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may
be valid or not depending on the ground invoked to justify it and
the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials.
Indeed, the extraordinary character of the exemptions indicates
that the presumption inclines heavily against executive secrecy
and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials
covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to
discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not,

unlike Section 3, require a prior determination by any official
whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they
are. Further, unlike also Section 3, the coverage of department
heads under Section 1 is not made to depend on the department
heads possession of any information which might be covered by
executive privilege. In fact, in marked contrast to Section 3 vis-vis Section 2, there is no reference to executive privilege at all.
Rather, the required prior consent under Section 1 is grounded on
Article VI, Section 22 of the Constitution on what has been referred
to as the question hour.
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

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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.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in recognition
of this distinction, later moved the provision on question hour from
its original position as Section 20 in the original draft down to
Section 31, far from the provision on inquiries in aid of legislation.
This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the

Committee on Style] We now go, Mr. Presiding Officer, to the Article
on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one
reaction to the Question Hour. I propose that instead of putting it
as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of its
own lawmaking; whereas, a Question Hour is not actually a power
in terms of its own lawmaking power because in Legislative Inquiry,
it is in aid of legislation. And so we put Question Hour as Section
31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the
legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in the
application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find
merit in the suggestion of Commissioner Davide. In other words,
we are accepting that and so this Section 31 would now become
Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

143
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the same
assumption that these provisions pertained to two different
functions of the legislature. Both Commissioners understood that
the power to conduct inquiries in aid of legislation is different from
the power to conduct inquiries during the question hour.
Commissioner Davides only concern was that the two provisions
on these distinct powers be placed closely together, they being
complementary to each other. Neither Commissioner considered
them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From
the above-quoted exchange, Commissioner Maambongs
committee the Committee on Style shared the view that the
two provisions reflected distinct functions of Congress.
Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that
of his Committee.
In the context of a parliamentary system of government, the
"question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and
the other ministers accountable for their acts and the operation of
the government,85 corresponding to what is known in Britain as the
question period. There was a specific provision for a question hour
in the 1973 Constitution86 which made the appearance of ministers
mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are
also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is
the immediate accountability of the Prime Minister and the Cabinet
to the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in the presidential system
where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the
Cabinet remain in office only as long as they enjoy the confidence
of the National Assembly. The moment this confidence is lost the
Prime Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory

nature of such appearance during the question hour in the present
Constitution so as to conform more fully to a system of separation
of powers.88 To that extent, the question hour, as it is presently
understood in this jurisdiction, departs from the question period of
the parliamentary system. That department heads may not be
required to appear in a question hour does not, however, mean
that the legislature is rendered powerless to elicit information from
them in all circumstances. In fact, in light of the absence of a
mandatory question period, the need to enforce Congress right to
executive information in the performance of its legislative function
becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the
subject under discussion, it is that the Congress has the right to
obtain information from any source even from officials of
departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very
separation that makes the congressional right to obtain information
from the executive so essential, if the functions of the Congress as
the elected representatives of the people are adequately to be
carried out. The absence of close rapport between the legislative
and executive branches in this country, comparable to those which
exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have
perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to
perform its legislative tasks. Unless the Congress possesses the
right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates
to the power to conduct inquiries in aid of legislation, the aim of
which is to elicit information that may be used for legislation, while

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the other pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress
oversight function.
When Congress merely seeks to be informed on how department
heads are implementing the statutes which it has issued, its right
to such information is not as imperative as that of the President to
whom, as Chief Executive, such department heads must give a
report of their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is "in aid
of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under Section
22 find their basis in the principle of separation of powers. While
the executive branch is a co-equal branch of the legislature, it
cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be
exempted from this power the President on whom executive
power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is sanctioned
by a long-standing custom.
By the same token, members of the Supreme Court are also
exempt from this power of inquiry. Unlike the Presidency, judicial

power is vested in a collegial body; hence, each member thereof is

exempt on the basis not only of separation of powers but also on
the fiscal autonomy and the constitutional 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

145
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.

146
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

147
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)

matter of internal policy formulation, an assumption in which this

Court is unwilling to indulge sua sponte.98 (Emphasis and
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

Black v. Sheraton Corp. of America100 amplifies, thus:

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

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."

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

148
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 determining the requisite degree of
particularity would be the privilege against self-incrimination. Thus,
Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself his say-so
does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to
answer if it clearly appears to the court that he is mistaken.
However, if the witness, upon interposing his claim, were required
to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious
disclosure could result." x x x (Emphasis and underscoring
supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an announcement
that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It
severely frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely
provides guidelines, binding only on the heads of office mentioned
in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government.
It may thus be construed as a mere expression of opinion by the
President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the
challenged order the alleged unlawful delegation of authority to
the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where,
so it claims, only the President can assert executive privilege to
withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is
privileged, such determination is presumed to bear the Presidents
authority and has the effect of prohibiting the official from
appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance
of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as already
discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch, 105 or in
those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities. 106 The
doctrine of executive privilege is thus premised on the fact that
certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that
obligation in a particular case.

149
In light of this highly exceptional nature of the privilege, the Court
finds it essential to limit to the President the power to invoke the
privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the
President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in
the instant case where the authorization is not explicit but by mere
silence. Section 3, in relation to Section 2(b), is further invalid on
this score.
It follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be
covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order
to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim
of executive privilege. If, after the lapse of that reasonable time,
neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring
officials to secure the consent of the President under Section 3 of
E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must
indeed be respected by Congress is an echo from Article VI Section
21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive
privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect for
such officials does not change the infirm nature of the
authorization itself.

Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it,
and not with the demands of citizens for information pursuant to
their right to information on matters of public concern. Petitioners
are not amiss in claiming, however, that what is involved in the
present controversy is not merely the legislative power of inquiry,
but the right of the people to information.
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry and
the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong
only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are generally
conducted in public, however, any executive issuance tending to
unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions
on the matter before Congress opinions which they can then
communicate to their representatives and other government
officials through the various legal means allowed by their freedom
of expression. Thus holds Valmonte v. Belmonte:
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

150
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)

Congress undoubtedly has a right to information from the

executive branch whenever it is sought in aid of legislation. If the
executive branch withholds such information on the ground that it
is privileged, it must so assert it and state the reason therefor and
why it must be respected.

The impairment of the right of the people to information as a

consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislatures power of
inquiry.

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

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it
does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that do
not directly apply to people in general, Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that 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

[w]hat republican theory did accomplishwas to reverse the old

presumption in favor of secrecy, based on the divine right of kings
and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring
supplied)109
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.

151
G.R. No. 208566
November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR.
JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN
PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE
OF THE PHILIPPINES represented by FRANKLIN M. DRILON
m his capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE,
JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S.
ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as
SENATE PRESIDENT and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE
OF REPRESENTATIVES, Respondents.
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G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac,
Marinduque Former Provincial Board Member -Province of
Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and
SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions 2 taken under Rule 65 of
the Rules of Court, all of which assail the constitutionality of the
Pork Barrel System. Due to the complexity of the subject matter,
the Court shall heretofore discuss the systems conceptual
underpinnings before detailing the particulars of the constitutional
challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English
origin.3 Historically, its usage may be traced to the degrading ritual

of rolling out a barrel stuffed with pork to a multitude of black

slaves who would cast their famished bodies into the porcine feast
to assuage their hunger with morsels coming from the generosity
of their well-fed master.4 This practice was later compared to the
actions of American legislators in trying to direct federal budgets in
favor of their districts.5 While the advent of refrigeration has made
the actual pork barrel obsolete, it persists in reference to political
bills that "bring home the bacon" to a legislators district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an
appropriation of government spending meant for localized projects
and secured solely or primarily to bring money to a
representative's district.7 Some scholars on the subject further use
it to refer to legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as
lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered 11 as the
earliest form of "Congressional Pork Barrel" in the Philippines since
the utilization of the funds appropriated therein were subjected to
post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain
public works projects13"shall be distributed x x x subject to the
approval of a joint committee elected by the Senate and the House
of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by
the Secretary of Commerce and Communications."14 Also, in the
area of fund realignment, the same section provides that the said
secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said
distribution, transfer unexpended portions of any item of
appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator
participation broadened from the areas of fund release and
realignment to the area of project identification. During that year,
the mechanics of the public works act was modified to the extent
that the discretion of choosing projects was transferred from the
Secretary of Commerce and Communications to legislators. "For
the first time, the law carried a list of projects selected by Members

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of Congress, they being the representatives of the people, either
on their own account or by consultation with local officials or civil
leaders."16 During this period, the pork barrel process commenced
with local government councils, civil groups, and individuals
appealing to Congressmen or Senators for projects. Petitions that
were accommodated formed part of a legislators allocation, and
the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated
into the administration bill prepared by the Department of Public
Works and Communications. Thereafter, the Senate and the House
of Representatives added their own provisions to the bill until it
was signed into law by the President the Public Works Act. 17 In the
1960s, however, pork barrel legislation reportedly ceased in view
of the stalemate between the House of Representatives and the
Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently
discontinued in 1972 after Martial Law was declared, an era when
"one man controlled the legislature,"19 the reprieve was only
temporary. By 1982, the Batasang Pambansa had already
introduced a new item in the General Appropriations Act (GAA)
called the" Support for Local Development Projects" (SLDP) under
the article on "National Aid to Local Government Units". Based on
reports,20 it was under the SLDP that the practice of giving lumpsum allocations to individual legislators began, with each
assemblyman receiving P500,000.00. Thereafter, assemblymen
would communicate their project preferences to the Ministry of
Budget and Management for approval. Then, the said ministry
would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or
municipal treasurers in the assemblymans locality. It has been
further reported that "Congressional Pork Barrel" projects under the
SLDP also began to cover not only public works projects, or socalled "hard projects", but also "soft projects",21 or non-public
works projects such as those which would fall under the categories
of, among others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the
restoration of Philippine democracy, "Congressional Pork Barrel"
was revived in the form of the "Mindanao Development Fund" and
the "Visayas Development Fund" which were created with lumpsum appropriations of P480 Million and P240 Million, respectively,

for the funding of development projects in the Mindanao and

Visayas areas in 1989. It has been documented23 that the clamor
raised by the Senators and the Luzon legislators for a similar
funding, prompted the creation of the "Countrywide Development
Fund" (CDF) which was integrated into the 1990 GAA 24 with an
initial funding ofP2.3 Billion to cover "small local infrastructure and
other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were,
with the approval of the President, to be released directly to the
implementing agencies but "subject to the submission of the
required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the
individual legislators, as well as their participation in the
identification of projects, it has been reported 26 that by 1992,
Representatives were receivingP12.5 Million each in CDF funds,
while Senators were receiving P18 Million each, without any
limitation or qualification, and that they could identify any kind of
project, from hard or infrastructure projects such as roads, bridges,
and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the
release of CDF funds was to be made upon the submission of the
list of projects and activities identified by, among others, individual
legislators. For the first time, the 1993 CDF Article included an
allocation for the Vice-President.29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million
each, and the Vice-President, P20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same
provisions on project identification and fund release as found in the
1993 CDF Article. In addition, however, the Department of Budget
and Management (DBM) was directed to submit reports to the
Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the VicePresident, in consultation with the implementing agency
concerned, were directed to submit to the DBM the list of 50% of
projects to be funded from their respective CDF allocations which
shall be duly endorsed by (a) the Senate President and the
Chairman of the Committee on Finance, in the case of the Senate,

153
and (b) the Speaker of the House of Representatives and the
Chairman of the Committee on Appropriations, in the case of the
House of Representatives; while the list for the remaining 50% was
to be submitted within six (6) months thereafter. The same article
also stated that the project list, which would be published by the
DBM,35 "shall be the basis for the release of funds" and that "no
funds appropriated herein shall be disbursed for projects not
included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding
the required lists and endorsements were reproduced, except that
the publication of the project list was no longer required as the list
itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork
Barrel" at that time. Other forms of "Congressional Pork Barrel"
were reportedly fashioned and inserted into the GAA (called
"Congressional Insertions" or "CIs") in order to perpetuate the ad
ministrations political agenda.37 It has been articulated that since
CIs "formed part and parcel of the budgets of executive
departments, they were not easily identifiable and were thus
harder to monitor." Nonetheless, the lawmakers themselves as well
as the finance and budget officials of the implementing agencies,
as well as the DBM, purportedly knew about the
insertions.38Examples of these CIs are the Department of Education
(DepEd) School Building Fund, the Congressional Initiative
Allocations, the Public Works Fund, the El Nio Fund, and the
Poverty Alleviation Fund.39 The allocations for the School Building
Fund, particularly, shall be made upon prior consultation with the
representative of the legislative district concerned.40 Similarly, the
legislators had the power to direct how, where and when these
appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three
(3) separate forms of CIs, namely, the "Food Security Program
Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44and the
"Rural/Urban Development Infrastructure Program Fund," 45 all of
which contained a special provision requiring "prior consultation"
with the Member s of Congress for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance
Fund" (PDAF) appeared in the GAA. The requirement of "prior
consultation with the respective Representative of the District"
before PDAF funds were directly released to the implementing
agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was

expressly allowed, with the sole condition that no amount shall be

used to fund personal services and other personnel benefits. 47 The
succeeding PDAF provisions remained the same in view of the reenactment48 of the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely
contained a single special provision ordering the release of the
funds directly to the implementing agency or local government unit
concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign.
Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the
DepEd52 required prior consultation with Members of Congress on
the aspects of implementation delegation and project list
submission, respectively. In 2004, the 2003 GAA was re-enacted. 53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to
fund priority programs and projects under the ten point agenda of
the national government and shall be released directly to the
implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may
be subsequently chosen by the identifying authority. The 2005 GAA
was re-enacted56 in 2006 and hence, operated on the same bases.
In similar regard, the program menu concept was consistently
integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with
respect to the specific amounts allocated for the individual
legislators, as well as their participation in the proposal and
identification of PDAF projects to be funded. In contrast to the PDAF
Articles, however, the provisions under the DepEd School Building
Program and the DPWH budget, similar to its predecessors,
explicitly required prior consultation with the concerned Member of
Congress61anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed
formal participation of non-governmental organizations (NGO) in
the implementation of government projects were introduced. In the
Supplemental Budget for 2006, with respect to the appropriation
for school buildings, NGOs were, by law, encouraged to participate.
For such purpose, the law stated that "the amount of at least P250
Million of the P500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs
including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School"

154
program, with capability and proven track records in the
construction of public school buildings x x x." 62 The same allocation
was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government
Procurement Policy Board64(GPPB) issued Resolution No. 12-2007
dated June 29, 2007 (GPPB Resolution 12-2007), amending the
implementing rules and regulations65 of RA 9184,66 the Government
Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter intoa memorandum of
agreement with an NGO, provided that "an appropriation law or
ordinance earmarks an amount to be specifically contracted out to
NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF
Articles, the 201170 PDAF Article included an express statement on
lump-sum amounts allocated for individual legislators and the VicePresident: Representatives were given P70 Million each, broken
down into P40 Million for "hard projects" and P30 Million for "soft
projects"; while P200 Million was given to each Senator as well as
the Vice-President, with a P100 Million allocation each for "hard"
and "soft projects." Likewise, a provision on realignment of funds
was included, but with the qualification that it may be allowed only
once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and
Local Government, Environment and Natural Resources, Energy,
and Public Works and Highways to realign PDAF Funds, with the
further conditions that: (a) realignment is within the same
implementing unit and same project category as the original
project, for infrastructure projects; (b) allotment released has not
yet been obligated for the original scope of work, and (c) the
request for realignment is with the concurrence of the legislator
concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the
"identification of projects and/or designation of beneficiaries shall
conform to the priority list, standard or design prepared by each
implementing agency (priority list requirement) x x x." However, as
practiced, it would still be the individual legislator who would
choose and identify the project from the said priority list. 74
Provisions on legislator allocations75 as well as fund
realignment76 were included in the 2012 and 2013 PDAF Articles;
but the allocation for the Vice-President, which was pegged at P200
Million in the 2011 GAA, had been deleted. In addition, the 2013

PDAF Article now allowed LGUs to be identified as implementing

agencies if they have the technical capability to implement the
projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he
secures the written concurrence of the legislator of the intended
outside-district, endorsed by the Speaker of the House. 78 Finally,
any realignment of PDAF funds, modification and revision of project
identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on
Appropriations and the Senate Committee on Finance, as the case
may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with
lump-sum, discretionary funds of Members of Congress, the
present cases and the recent controversies on the matter have,
however, shown that the terms usage has expanded to include
certain funds of the President such as the Malampaya Funds and
the Presidential Social Fund.
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 energy-related 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

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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
Recently, or in July of the present year, the National Bureau
of Investigation (NBI) began its probe into allegations that
"the government has been defrauded of some P10 Billion
over the past 10 years by a syndicate using funds from the
pork barrel of lawmakers and various government agencies
for scores of ghost projects."96 The investigation was
spawned by sworn affidavits of six (6) whistle-blowers who
declared that JLN Corporation "JLN" standing for Janet Lim
Napoles (Napoles) had swindled billions of pesos from the
public coffers for "ghost projects" using no fewer than 20
dummy NGOs for an entire decade. While the NGOs were
supposedly the ultimate recipients of PDAF funds, the
whistle-blowers declared that the money was diverted into
Napoles private accounts.97 Thus, after its investigation on
the Napoles controversy, criminal complaints were filed

before the Office of the Ombudsman, charging five (5)

lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft
and Corrupt Practices Act. Also recommended to be
charged in the complaints are some of the lawmakers
chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles. 98
On August 16, 2013, the Commission on Audit (CoA)
released the results of a three-year audit
investigation99 covering the use of legislators' PDAF from
2007 to 2009, or during the last three (3) years of the
Arroyo administration. The purpose of the audit was to
determine the propriety of releases of funds under PDAF
and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the
implementation of projects by the appropriate
implementing agencies and several government-ownedand-controlled corporations (GOCCs).101 The total releases
covered by the audit amounted to P8.374 Billion in PDAF
and P32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were
found to have been made nationwide during the audit
period.102 Accordingly, the Co As findings contained in its
Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were made
public, the highlights of which are as follows: 103
Amounts released for projects identified by a
considerable number of legislators significantly
exceeded their respective allocations.
Amounts were released for projects outside of
legislative districts of sponsoring members of the
Lower House.
Total VILP releases for the period exceeded the
total amount appropriated under the 2007 to 2009
GAAs.
Infrastructure projects were constructed on
private lots without these having been turned over
to the government.
Significant amounts were released to
implementing agencies without the latters
endorsement and without considering their

156
mandated functions, administrative and technical
capabilities to implement projects.
Implementation of most livelihood projects was
not undertaken by the implementing agencies
themselves but by NGOs endorsed by the
proponent legislators to which the Funds were
transferred.
The funds were transferred to the NGOs in spite
of the absence of any appropriation law or
ordinance.
Selection of the NGOs were not compliant with
law and regulations.
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.
As for the "Presidential Pork Barrel", whistle-blowers alleged that"
at least P900 Million from royalties in the operation of the
Malampaya gas project off Palawan province intended for agrarian
reform beneficiaries has gone into a dummy NGO." 104 According to
incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA
Chairperson), the CoA is, as of this writing, in the process of
preparing "one consolidated report" on the Malampaya Funds. 105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report
and the Napoles controversy, several petitions were lodged before
the Court similarly seeking that the "Pork Barrel System" be
declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara),
President of the Social Justice Society, filed a Petition for Prohibition
of even date under Rule 65 of the Rules of Court (Alcantara
Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently
restraining respondents Franklin M. Drilon and Feliciano S.
Belmonte, Jr., in their respective capacities as the incumbent

Senate President and Speaker of the House of Representatives,

from further taking any steps to enact legislation appropriating
funds for the "Pork Barrel System," in whatever form and by
whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed
as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B.
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San
Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual
"Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the
Executives lump-sum, discretionary funds, such as the Malampaya
Funds and the Presidential Social Fund,107 be declared
unconstitutional and null and void for being acts constituting grave
abuse of discretion. Also, they pray that the Court issue a TRO
against respondents Paquito N. Ochoa, Jr., Florencio B. Abad
(Secretary Abad) and Rosalia V. De Leon, in their respective
capacities as the incumbent Executive Secretary, Secretary of the
Department of Budget and Management (DBM), and National
Treasurer, or their agents, for them to immediately cease any
expenditure under the aforesaid funds. Further, they pray that the
Court order the foregoing respondents to release to the CoA and to
the public: (a) "the complete schedule/list of legislators who have
availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and
(b) "the use of the Executives lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying
the x x x project or activity and the recipient entities or individuals,
and all pertinent data thereto."108 Also, they pray for the "inclusion
in budgetary deliberations with the Congress of all presently offbudget, lump-sum, discretionary funds including, but not limited to,
proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No.
208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
(Nepomuceno), filed a Petition dated August 23, 2012
(Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued

157
restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to Members
of Congress and, instead, allow their release to fund priority
projects identified and approved by the Local Development
Councils in consultation with the executive departments, such as
the DPWH, the Department of Tourism, the Department of Health,
the Department of Transportation, and Communication and the
National Economic Development Authority.111 The Nepomuceno
Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date
(a) consolidating all cases; (b) requiring public respondents to
comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer,
the Executive Secretary, or any of the persons acting under their
authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya
Funds under the phrase "for such other purposes as may be
hereafter directed by the President" pursuant to Section 8 of PD
910 but not for the purpose of "financing energy resource
development and exploitation programs and projects of the
government under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.
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
On September 24, 2013, the Court issued a Resolution of even date
directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their
respective replies to the Comment: (a) on September 30, 2013,
Villegas filed a separate Reply dated September 27, 2013 (Villegas
Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated
September 30, 2013 (Belgica Reply); and (c) on October 2, 2013,
Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the
guidelines to be observed by the parties for the Oral Arguments
scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General
Francis H. Jardeleza (Solicitor General) was directed to bring with
him during the Oral Arguments representative/s from the DBM and
Congress who would be able to competently and completely
answer questions related to, among others, the budgeting process

and its implementation. Further, the CoA Chairperson was

appointed as amicus curiae and thereby requested to appear
before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted.
Thereafter, the Court directed the parties to submit their respective
memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments,
the following are the main issues for the Courts resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions
involve an actual and justiciable controversy; (b) the issues raised
in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d)
the Courts Decision dated August 19, 1994 in G.R. Nos. 113105,
113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and
Poverty v. Secretary of Budget and Management"115 (LAMP) bar the
re-litigatio n of the issue of constitutionality of the "Pork Barrel
System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
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) non-delegability of legislative power; (c)
checks and balances; (d) accountability; (e) political dynasties; and
(f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
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.

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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 important119 and, 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 requirement of an actual
case or controversy is the requirement of "ripeness," meaning that
the questions raised for constitutional scrutiny are already ripe for
adjudication. "A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. It is a prerequisite that something had then been
accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the
challenged action."123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they are
of authority to resolve hypothetical or moot questions." 124
Based on these principles, the Court finds that there exists an
actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by
the antagonistic positions of the parties on the constitutionality of
the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the
provisions allowing for their utilization such as the 2013 GAA for

the PDAF, PD 910 for the Malampaya Funds and PD 1869, as

amended by PD 1993, for the Presidential Social Fund are
currently existing and operational; hence, there exists an
immediate or threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues
related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot when
there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that
respondents proposed line-item budgeting scheme would not
terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget,
and not the 2013 PDAF Article which, being a distinct subject
matter, remains legally effective and existing. Neither will the
Presidents declaration that he had already "abolished the PDAF"
render the issues on PDAF moot precisely because the Executive
branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment
or nullification of a law may be done either by Congress, through
the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the
following exchange between Associate Justice Antonio T. Carpio
(Justice Carpio) and the Solicitor General during the Oral
Arguments:126
Justice Carpio: The President has taken an oath to faithfully
execute the law,127 correct? Solicitor General Jardeleza: Yes, Your
Honor.
Justice Carpio: And so the President cannot refuse to implement
the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In
the case, for example of the PDAF, the President has a duty to
execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I 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?

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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
the constitutionality of the very system within which significant
amounts of public funds have been and continue to be utilized and
expended undoubtedly presents a situation of exceptional
character as well as a matter of paramount public interest. The
present petitions, in fact, have been lodged at a time when the
systems flaws have never before been magnified. To the Courts
mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the governments own recognition
that reforms are needed "to address the reported abuses of the

PDAF"130 demonstrates a prima facie pattern of abuse which only

underscores the importance of the matter. It is also by this finding
that the Court finds petitioners claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the
Court to the findings made by the CoA which is the constitutionallymandated audit arm of the government. In Delos Santos v.
CoA,131 a recent case wherein the Court upheld the CoAs
disallowance of irregularly disbursed PDAF funds, it was
emphasized that:
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 constitutionallycreated, 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 importantly, so that the government

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may be guided on how public funds should be utilized in
accordance with constitutional principles.
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."137The 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 "limitation on the power of judicial review to actual cases and
controversies carries the assurance that "the courts will not
intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr,139applies when there is found,
among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department," "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."
Cast against this light, respondents submit that the "the political
branches are in the best position not only to perform budgetrelated reforms but also to do them in response to the specific
demands of their constituents" and, as such, "urge the Court not to
impose a solution at this stage."140
The Court must deny respondents submission.
Suffice it to state that the issues raised before the Court do not
present political but legal questions which are within its province to
resolve. A political question refers to "those questions which, under
the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the

wisdom, not legality, of a particular measure." 141 The intrinsic

constitutionality of the "Pork Barrel System" is not an issue
dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself has
commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political
branches of government are incapable of rendering precisely
because it is an exercise of judicial power. More importantly, the
present Constitution has not only vested the Judiciary the right to
exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be
any clearer: "The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law. It
includes the duty of the courts of justice to settle actual
controversies involving rights 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

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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 citizen-taxpayers 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 unconstitutional usage of public funds, if
the Court so rules. Invariably, taxpayers have been 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 public funds are wasted through the enforcement of an invalid
or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing
requirement given that the issues they have raised may be
classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public
interest."148 The CoA Chairpersons statement during the Oral
Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of
controls"149 amplifies, in addition to the matters above-discussed,
the seriousness of the issues involved herein. Indeed, of greater
import than the damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the fundamental law by
the enforcement of an invalid statute.150 All told, petitioners have
sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis

non quieta et movere (or simply, stare decisis which means "follow
past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects
of previous but factually similar dispositions to subsequent cases.
For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states
that a judgment on the merits in a previous case rendered by a
court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.151 This required
identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article, whereas the cases at bar
call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based
on a procedural technicality and, thus, hardly a judgment on the
merits in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct
releases of funds to the Members of Congress, who actually spend
them according to their sole discretion" or "pertinent evidentiary
support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous
Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004
PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing
reasons, the res judicata principle, insofar as the Philconsa and
LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine
created. The principle, entrenched under Article 8152 of the Civil
Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to
those that follow if the facts are substantially the same, 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

162
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 guise,
I am afraid, would be constitutionally impermissible." As the Court
now largely benefits from hindsight and current findings on the
matter, among others, the CoA Report, the Court must partially
abandon its previous ruling in Philconsa insofar as it validated the
post-enactment identification authority of Members of Congress on
the guise that the same was merely recommendatory. This
postulate raises serious constitutional inconsistencies which cannot
be simply excused on the ground that such mechanism is
"imaginative as it is innovative." Moreover, it must be pointed out
that the recent case of Abakada Guro Party List v.
Purisima155 (Abakada) has effectively overturned Philconsas
allowance of post-enactment legislator participation in view of the
separation of powers principle. These constitutional inconsistencies
and the Abakada rule will be discussed in greater detail in the
ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed
on a procedural technicality and, hence, has not set any controlling
doctrine susceptible of current application to the substantive issues
in these cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of
these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as they
are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion
between the Legislative and Executive branches of government to
accumulate lump-sum public funds in their offices with unchecked
discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the
Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is
given sole and broad discretion in determining how the funds will
be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or
inexistent; and (d) projects funded are intended to benefit a

163
definite constituency in a particular part of the country and to help
the political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel
System is comprised of two (2) kinds of discretionary public funds:
first, the Congressional (or Legislative) Pork Barrel, currently known
as the PDAF;158 and, second, the Presidential (or Executive) Pork
Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993. 159
Considering petitioners submission and in reference to its local
concept and legal history, the Court defines the Pork Barrel System
as the collective body of rules and practices that govern the
manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System
involves two (2) kinds of lump-sum discretionary funds:
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
post-enactment 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,164 belongs the power to make laws; to the executive

branch of government, through the President,165belongs 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. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2)
ways: firstly, "one branch may interfere impermissibly with the
others performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated when
one branch assumes a function that more properly is entrusted to
another."172 In other words, there is a violation of the principle
when there is impermissible (a) interference with and/or (b)
assumption of another departments functions.
The enforcement of the national budget, as primarily contained in
the GAA, is indisputably a function both constitutionally assigned
and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained
that the phase of budget execution "covers the various operational
aspects of budgeting" and accordingly includes "the evaluation of
work and financial plans for individual activities," the "regulation
and release of funds" as well as all "other related activities" that
comprise the budget execution cycle.174 This is rooted in the
principle that the allocation of power in the three principal
branches of government is a grant of all powers inherent in
them.175 Thus, unless the Constitution provides otherwise, the
Executive department should exclusively exercise all roles and

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prerogatives which go into the implementation of the national
budget as provided under the GAA as well as any other
appropriation law.
In view of the foregoing, the Legislative branch of government,
much more any of its members, should not cross over the field of
implementing the national budget since, as earlier stated, the
same is properly the domain of the Executive. Again, in Guingona,
Jr., the Court stated that "Congress enters the picture when it
deliberates or acts on the budget proposals of the President.
Thereafter, Congress, "in the exercise of its own judgment and
wisdom, formulates an appropriation act precisely following the
process established by the Constitution, which specifies that no
money may be paid from the Treasury except in accordance with
an appropriation made by law." Upon approval and passage of the
GAA, Congress law -making role necessarily comes to an end and
from there the Executives role of implementing the national
budget begins. So as not to blur the constitutional boundaries
between them, Congress must "not concern it self with details for
implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in
Abakada where the Court held that "from the moment the law
becomes effective, any provision of law that empowers Congress or
any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional."177 It must be clarified,
however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still
exercise its oversight function which is a mechanism of checks and
balances that the Constitution itself allows. But it must be made
clear that Congress role must be confined to mere oversight. Any
post-enactment-measure allowing legislator participation beyond
oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada: 178
Any post-enactment congressional measure x x x should be limited
to scrutiny and investigation.1wphi1 In particular, congressional
oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments
to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of

laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork
Barrel among others, the 2013 PDAF Article "wrecks the
assignment of responsibilities between the political branches" as it
is designed to allow individual legislators to interfere "way past the
time it should have ceased" or, particularly, "after the GAA is
passed."179They state that the findings and recommendations in
the CoA Report provide "an illustration of how absolute and
definitive the power of legislators wield over project
implementation in complete violation of the constitutional principle
of separation of powers."180 Further, they point out that the Court in
the Philconsa case only allowed the CDF to exist on the condition
that individual legislators limited their role to recommending
projects and not if they actually dictate their implementation. 181
For their part, respondents counter that the separations of powers
principle has not been violated since the President maintains
"ultimate authority to control the execution of the GAA and that
he "retains the final discretion to reject" the legislators
proposals.182 They maintain that the Court, in Philconsa, "upheld
the constitutionality of the power of members of Congress to
propose and identify projects so long as such proposal and
identification are recommendatory."183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article
follows the Philconsa framework, and hence, remains
constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of
all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project
implementation.
At its core, legislators may it be through project lists, 185 prior
consultations186 or program menus187 have been consistently
accorded post-enactment authority to identify the projects they
desire to be funded through 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

165
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 4189 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 Industry190 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 articulated
in Abakada, cannot be overstated from the moment the law
becomes effective, any provision of law that empowers Congress or
any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional.191 That the said authority is
treated as merely recommendatory in nature does not alter its
unconstitutional tenor since the prohibition, to repeat, covers any
role in the implementation or enforcement of the law. Towards this
end, the Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identification on the guise that
the same is merely recommendatory and, as such, respondents
reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless
failed to substantiate their position that the identification authority
of legislators is only of recommendatory import. Quite the contrary,
respondents through the statements of the Solicitor General
during the Oral Arguments have admitted that the identification
of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution
process:192
Justice Bernabe: Now, without the individual legislators
identification of the project, can the PDAF of the legislator be
utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot (interrupted)
Justice Bernabe: So meaning you should have the identification of
the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?

166
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is
not done and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a
project was implemented without the identification by the
individual legislator?
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 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)
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.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle, 194 legislative
power shall be exclusively exercised by the body to which the
Constitution has conferred the same. In particular, Section 1,
Article VI of the 1987 Constitution states that such power shall be
vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and
referendum.195 Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the
process of initiative and referendum, may constitutionally wield
legislative power and no other. This premise embodies the principle
of non-delegability of legislative power, and the only recognized
exceptions thereto would be: (a) delegated legislative power to
local governments which, by immemorial practice, are allowed to
legislate on purely local matters;196 and (b) constitutionally-grafted
exceptions such as the authority of the President to, by law,
exercise powers necessary and proper to carry out a declared
national policy in times of war or other national emergency, 197 or
fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government.198
Notably, the principle of non-delegability should not be confused as
a restriction to delegate rule-making authority to implementing
agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual operation (contingent
rule-making).199 The conceptual treatment and limitations of
delegated rule-making were explained in the case of People v.
Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a
relaxation of the principle of separation of powers and is an

167
exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to
promote the public interest are necessary because of "the growing
complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of
administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power
must be confined to details for regulating the mode or proceeding
to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute.
Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)
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 Justice and
Insular Auditor202 (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 lumpsum 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 nondelegability 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.
a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to
be kept separate and distinct does not mean that they are
absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks
and balances to secure coordination in the workings of the various
departments of the government.203
A prime example of a constitutional check and balance would be
the Presidents power to veto an item written into an appropriation,
revenue or tariff bill submitted to him by Congress for approval
through a process known as "bill presentment." The Presidents
item-veto power is found in Section 27(2), Article VI of the 1987
Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(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 lawmaking 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 lawmaking 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

168
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 "lineitem."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.

169
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
matter is that unconstitutional means do not justify even
commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various
forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking itself or
its Members. In particular, they point out that the Congressional
Pork Barrel "gives each legislator a direct, financial interest in the
smooth, speedy passing of the yearly budget" which turns them
"from fiscalizers" into "financially-interested partners."219 They also
claim that the system has an effect on re- election as "the PDAF
excels in self-perpetuation of elective officials." Finally, they add
that the "PDAF impairs the power of impeachment" as such "funds
are indeed quite useful, to well, accelerate the decisions of
senators."220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is an
overarching reminder that every instrumentality of government
should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of
the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the
Constitution which are designed to exact accountability from public
officers.

170
Among others, an accountability mechanism with which the proper
expenditure of public funds may be checked is the power of
congressional oversight. As mentioned in Abakada,222 congressional
oversight may be performed either through: (a) scrutiny based
primarily on Congress power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses
on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded
in some forms of Congressional Pork Barrel, among others the 2013
PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become
disinterested "observers" when scrutinizing, investigating or
monitoring the implementation of the appropriation law. To a
certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would,
in effect, be checking on activities in which they themselves
participate. Also, it must be pointed out that this very same
concept of post-enactment authorization runs afoul of Section 14,
Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives
may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any governmentowned or controlled corporation, or its subsidiary, during his term
of office. He shall not intervene in any matter before any office of
the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of
project implementation a matter before another office of
government renders them susceptible to taking undue advantage
of their own office.
The Court, however, cannot completely agree that the same postenactment 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.
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.
In sum, insofar as its post-enactment features dilute congressional
oversight and violate Section 14, Article VI of the 1987
Constitution, thus impairing public accountability, the 2013 PDAF
Article and other forms of Congressional Pork Barrel of similar
nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables
politicians who are members of political dynasties to accumulate
funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is
considered as not self-executing due to the qualifying phrase "as
may be defined by law." In this respect, said provision does not, by
and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive
action.226Therefore, since there appears to be no standing law
which crystallizes the policy on political dynasties for enforcement,
the Court must defer from ruling on this issue.
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
Sec. 25. The State shall ensure the autonomy of local
governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.

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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.
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."231Drawing 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 megaprojects.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

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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 personalitydriven 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 Powers of PAGCOR.238 In view of the foregoing,
petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of
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."239
The Court disagrees.
"An appropriation made by law under the contemplation of
Section 29(1), Article VI of the 1987 Constitution exists when a
provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a
particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word
"appropriation," which means "to allot, assign, set apart or apply to
a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the
Constitution "does not provide or prescribe any particular form of
words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be made
by law," an appropriation law may according to Philconsa be
"detailed and as broad as Congress wants it to be" for as long as
the intent to appropriate may be gleaned from the same. As held in
the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes
any particular form of words or religious recitals in which an
authorization or appropriation by Congress shall be made, except
that it be "made by law," such as precisely the authorization or
appropriation under the questioned presidential decrees. In other
words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as
expressly for the current fiscal year (as by enactment of laws by
the present Congress), just as said appropriation may be made in
general as well as in specific terms. The Congressional
authorization may be embodied in annual laws, such as a general
appropriations act or in special provisions of laws of general or
special application which appropriate public funds for specific
public purposes, such as the questioned decrees. An appropriation

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measure is sufficient if the legislative intention clearly and
certainly appears from the language employed (In re Continuing
Appropriations, 32 P. 272), whether in the past or in the present.
(Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v.
La Grave:242
To constitute an appropriation there must be money placed in a
fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means
the setting apart a portion of the public funds for a public purpose.
No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the
argument that the appropriation must be the "primary and
specific" purpose of the law in order for a valid appropriation law to
exist. To reiterate, if a legal provision designates a determinate or
determinable amount of money and allocates the 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 of PD 910 pertinently provides:
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)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. After deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent share of the
Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less
than P150,000,000.00 shall be set aside and shall accrue to the
General Fund 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. (Emphases supplied)
Analyzing the legal text vis--vis the above-mentioned principles, it
may then be concluded that (a) Section 8 of PD 910, which creates
a Special Fund comprised of "all fees, revenues, and receipts of the
Energy Development Board from any and all sources" (a
determinable amount) "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" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly
sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate
gross earnings of PAGCOR, or 60%, if the aggregate gross earnings
be less than P150,000,000.00" (also a determinable amount) "to
finance the priority infrastructure development projects and x x x
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" (also a specified public purpose), are
legal appropriations under Section 29(1), Article VI of the 1987
Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article
cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a
system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators
after the GAA is passed, they occur outside the law. As such, the
Court observes that the real appropriation made under the 2013
PDAF Article is not the P24.79 Billion allocated for the entire PDAF,
but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of
the law. Irrefragably, the 2013 PDAF Article does not constitute an
"appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the
non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910
constitutes an undue delegation of legislative power since the
phrase "and for such other purposes as may be hereafter directed
by the President" gives the President "unbridled discretion to
determine for what purpose the funds will be

174
used."243 Respondents, on the other hand, urged the Court to apply
the principle of ejusdem generis to the same section and thus,
construe the phrase "and for such other purposes as may be
hereafter directed by the President" to refer only to other purposes
related "to energy resource development and exploitation
programs and projects of the government."244
The Court agrees with petitioners submissions.
While the designation of a determinate or determinable amount for
a particular public purpose is sufficient for a legal appropriation to
exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the
law for its enforcement, known as supplementary rule-making, or
(b) ascertaining facts to bring the law into actual operation,
referred to as contingent rule-making.246 There are two (2)
fundamental tests to ensure that the legislative guidelines for
delegated rule-making are indeed adequate. The first test is called
the "completeness test." Case law states that a law is complete
when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test
is called the "sufficient standard test." Jurisprudence holds that a
law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of
the delegates authority and prevent the delegation from running
riot.247To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy, and identify
the conditions under which it is to be implemented. 248
In view of the foregoing, the Court agrees with petitioners that the
phrase "and for such other purposes as may be hereafter directed
by the President" under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the
Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives
the President wide latitude to use the Malampaya Funds for any
other purpose he may direct and, in effect, allows him to
unilaterally appropriate public funds 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

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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."253In
fine, the phrase "to finance the priority infrastructure development
projects" must be stricken down as unconstitutional since similar
to the above-assailed provision under Section 8 of PD 910 it lies
independently unfettered by any sufficient standard of the
delegating law. As they are severable, all other provisions of
Section 12 of PD 1869, as amended by PD 1993, remains legally
effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System
unconstitutional as the Court did so in the context of its
pronouncements made in this Decision petitioners equally pray
that the Executive Secretary and/or the DBM be ordered to release
to the CoA and to the public: (a) "the complete schedule/list of
legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or
activity and the recipient entities or individuals, and all pertinent
data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds
from the x x x Malampaya Funds and remittances from the PAGCOR
x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report). Petitioners prayer is
grounded on Section 28, Article II and Section 7, Article III of the
1987 Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

The Court denies petitioners submission.

Case law instructs that the proper remedy to invoke the right to
information is to file a petition for mandamus. As explained in the
case of Legaspi v. Civil Service Commission: 256
While the manner of examining public records may be subject to
reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and
to afford access to public records cannot be discretionary on the
part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional
duty, not being discretionary, its performance may be compelled
by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant duty
of the State are unequivocably set forth in the Constitution.
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.

176
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 the Court recognizes that
the information requested is a matter of significant public concern,
however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally
important interests of the government, it is constrained to deny
petitioners prayer on this score, without prejudice to a proper
mandamus case which they, or even the CoA, may choose to
pursue through a separate petition.
It bears clarification that the Courts denial herein should only
cover petitioners plea to be furnished with such schedule/list and
report and not in any way deny them, or the general public, access
to official documents which are already existing and of public
record. Subject to reasonable regulation and absent any valid
statutory prohibition, access to these documents should not be
proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list
requested by petitioners therein, it nonetheless allowed access to
the documents sought for by the latter, subject, however, to the
custodians reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents
evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the
records may be avoided, that undue interference with the duties of
the custodian of the records may be prevented and that the right
of other persons entitled to inspect the records may be insured
Legaspi v. Civil Service Commission, supra at p. 538, quoting
Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second

and third alternative acts sought to be done by petitioners, is

meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who
were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady
Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners Prayer to Include Matters in Congressional
Deliberations.
Petitioners further seek that the Court "order the inclusion in
budgetary deliberations with the Congress of all presently, offbudget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the
PAGCOR and the PCSO or the Executives Social Funds." 260
Suffice it to state that the above-stated relief sought by petitioners
covers a matter which is generally left to the prerogative of the
political branches of government. Hence, lest the Court itself
overreach, it must equally deny their prayer on this score.
3. Respondents Prayer to Lift TRO; Consequential Effects of
Decision.
The final issue to be resolved stems from the interpretation
accorded by the DBM to the concept of released funds. In response
to the Courts September 10, 2013 TRO that enjoined the release
of the remaining PDAF allocated for the year 2013, the DBM issued
Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular
2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA,
where a Special Allotment Release Order (SARO) has been issued
by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected by
the agencies concerned.
Based on the text of the foregoing, the DBM authorized the
continued implementation and disbursement of PDAF funds as long
as they are: first, covered by a SARO; and, second, that said SARO
had been obligated by the implementing agency concerned prior to
the issuance of the Courts September 10, 2013 TRO.
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

177
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.
This same pronouncement must be equally applied to (a) the
Malampaya Funds which have been obligated but not released
meaning, those merely covered by a SARO under the phrase "and
for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910; and (b) funds sourced
from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section
12 of PD 1869, as amended by PD 1993, which were altogether
declared by the Court as unconstitutional. However, these funds
should not be reverted to the general fund as afore-stated but
instead, respectively remain under the Malampaya Funds and the
Presidential Social Fund to be utilized for their corresponding
special purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.

178
As a final point, it must be stressed that the Courts
pronouncement anent the unconstitutionality of (a) the 2013 PDAF
Article and its Special Provisions, (b) all other Congressional Pork
Barrel provisions similar thereto, and (c) the phrases (1) "and for
such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the
priority infrastructure development projects" under Section 12 of
PD 1869, as amended by PD 1993, must only be treated as
prospective in effect in view of the operative fact doctrine.
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 violated the principle of nondelegability of legislative power ; insofar as it has created a system
of budgeting wherein items are not textualized into the
appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to

veto items ; insofar as it has diluted the effectiveness of

congressional oversight by giving legislators a stake in the affairs
of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired
public accountability ; insofar as it has authorized legislators, who
are national officers, to intervene in affairs of purely local nature,
despite the existence of capable local institutions, it has likewise
subverted genuine local autonomy ; and again, insofar as it has
conferred to the President the power to appropriate funds intended
by law for energy-related purposes only to other purposes he may
deem fit as well as other public funds under the broad classification
of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the
multifarious unconstitutional methods and mechanisms the Court
has herein pointed out should never again be adopted in any
system of governance, by any name or form, by any semblance or
similarity, by any influence or effect. Disconcerting as it is to think
that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in
government to look forward with the optimism of change and the
awareness of the past. At a time of great civic unrest and
vociferous public debate, the Court fervently hopes that its
Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path
forged by the Constitution so that no one may heretofore detract
from its cause nor stray from its course. After all, this is the Courts
bounden duty and no others.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the
constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF
Article; (b) all legal provisions of past and present Congressional
Pork Barrel Laws, such as the previous PDAF and CDF Articles and
the various Congressional Insertions, which authorize/d legislators
whether individually or collectively organized into committees
to intervene, assume or participate in any of the various postenactment stages of the budget execution, such as but not limited
to the areas of project identification, modification and revision of
project identification, fund release and/or fund realignment,
unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws,
such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum
allocations to legislators from which they are able to fund specific

179
projects which they themselves determine; (d) all informal
practices of similar import and effect, which the Court similarly
deems to be acts of grave abuse of discretion amounting to lack or
excess of jurisdiction; and (e) the phrases (1) "and for such other
purposes as may be hereafter directed by the President" under
Section 8 of Presidential Decree No. 910 and (2) "to finance the
priority infrastructure development projects" under Section 12 of
Presidential Decree No. 1869, as amended by Presidential Decree
No. 1993, for both failing the sufficient standard test in violation of
the principle of non-delegability of legislative power.
Accordingly, the Courts temporary injunction dated September 10,
2013 is hereby declared to be PERMANENT. Thus, the
disbursement/release of the remaining PDAF funds allocated for
the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for
such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910,
and (2) the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to
Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision
is promulgated, not covered by Notice of Cash Allocations (NCAs)
but only by Special Allotment Release Orders (SAROs), whether
obligated or not, are hereby ENJOINED. The remaining PDAF funds
covered by this permanent injunction shall not be
disbursed/released but instead reverted to the unappropriated
surplus of the general fund, while the funds under the Malampaya
Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise
declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper
substantiation, the Court hereby DENIES petitioners prayer
seeking that the Executive Secretary and/or the Department of
Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports
related to the availments and utilization of the funds subject of
these cases. Petitioners access to official documents already
available and of public record which are related to these funds
must, however, not be prohibited but merely subjected to the
custodians reasonable regulations or any valid statutory
prohibition on the same. This denial is without prejudice to a proper
mandamus case which they or the Commission on Audit may
choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of

the funds subject of these cases in the budgetary deliberations of
Congress as the same is a matter left to the prerogative of the
political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the
government to, within the bounds of reasonable dispatch,
investigate and accordingly prosecute all government officials
and/or private individuals for possible criminal offenses related to
the irregular, improper and/or unlawful disbursement/utilization of
all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.

180

G.R. Nos. 185729-32

June 26, 2013

PEOPLE OF THE PHILIPPINES, PETITIONER,

vs.
THE HONORABLE SANDIGANBAYAN (FOURTH DIVISION),
ANTONIO P. BELICENA, ULDARICO P. ANDUTAN, JR., RAUL C.
DE VERA, ROSANNA P. DIALA AND JOSEPH A.
CABOTAJE, RESPONDENTS.
DECISION
ABAD, J.:
This case arose from the issuance of two Tax Credit Certificates in
favor of JAM Liner, Inc. which were investigated and found
fraudulent by the Presidential Task Force 156, created by then
President Joseph E. Estrada.
The Facts and the Case
The principal respondent in this case, Homero A. Mercado, was the
President of JAM Liner, Inc. The other respondents, Antonio A.
Belicena, Uldarico P. Andutan Jr., Raul C. De Vera, and Rosanna P.
Diala, were Department of Finance (DOF) officials formerly
assigned at its One-Stop Shop Inter-Agency Tax Credit and
Drawback Center (DOF One-Stop Shop).

Sometime in 2000, showing willingness to testify against the

criminal syndicate that allegedly ran the tax credit scam at the
DOF One-Stop Shop, Mercado applied with the Department of
Justice (DOJ) for immunity as state witness under its witness
protection program. On June 5, 2000 the DOJ favorably acted on
the application and granted immunity to Mercado. Still, since the
investigation of the case fell within the authority of the Office of
the Ombudsman (Ombudsman), the latter charged him and the
other respondents before the Sandiganbayans Fourth Division with
violations of Section 3(j) of Republic Act (R.A.) 3019 and two counts
of falsification under Article 171, paragraph 4, of the Revised Penal
Code in Criminal Cases 27511-14.
The first information alleged that respondent DOF officials
approved and issued in 1996 Tax Credit Certificate 7711
for P7,350,444.00 in favor of JAM Liner, Inc. for domestic capital
equipment although it did not qualify for such tax credit. The
second Information alleged that they further illegally issued in
1996 Tax Credit Certificate 7708 for P4,410,265.50 in favor of the
same company covering its purchase of six Mitsubishi buses.
Mercado filed a motion for reconsideration or reinvestigation before
the Ombudsman, citing the DOJs grant of immunity to him. Acting
favorably on the motion, on September 4, 2003 the Ombudsman
executed an Immunity Agreement1 with Mercado. The agreement
provided that, in consideration for granting him immunity from
suit, Mercado would produce all relevant documents in his
possession and testify against the accused in all the cases, criminal
or otherwise, that may be filed against them. Accordingly, on the
same date, the Ombudsman filed a motion to discharge
Mercado2 from the information involving him.
But on April 30, 2008 the Sandiganbayan issued a
Resolution,3 denying the Ombudsmans motion. That court held
that the pieces of evidence adduced during the hearing of the
Ombudsmans motion failed to establish the conditions required
under Section 17, Rule 119 of the Rules of Court for the discharge
of an accused as a state witness. The Ombudsman filed a motion

181
for reconsideration but the court denied it on November 6,
2008,4 hence, this petition of the People of the Philippines.
Issue Presented
The central issue that this case presents is whether or not the
Sandiganbayan gravely abused its discretion in refusing to
recognize the immunity from criminal prosecution that the
Ombudsman granted respondent Mercado and, as a result, in
declining to discharge him from the information as a state witness.
Ruling of the Court
In denying the Ombudsmans motion to drop Mercado from the
information, the Sandiganbayan largely dwelt on the question of
whether or not the prosecution complied with the requirements of
Section 17, Rule 119 of the Rules of Criminal Procedure.
Respondents De Vera and Diala, Mercados co-accused who
opposed the grant of immunity to him, contend that the immunity
that the Ombudsman gave Mercado does not bind the court, which
in the meantime already acquired jurisdiction over the case against
him. That immunity merely relieves Mercado from any further
proceedings, including preliminary investigation, which the state
might still attempt to initiate against him.5
This in a way is true. But the filing of the criminal action against an
accused in court does not prevent the Ombudsman from exercising
the power that the Congress has granted him. Section 17 of R.A.
6770 provides:
Section 17. Immunities. x x x Under such terms and conditions as
it may determine, taking into account the pertinent provisions of
the Rules of Court, the Ombudsman may grant immunity from
criminal prosecution to any person whose testimony or whose
possession and production of documents or other evidence may be
necessary to determine the truth in any hearing, inquiry or
proceeding being conducted by the Ombudsman or under its
authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. The immunity

granted under this and the immediately preceding paragraph shall

not exempt the witness from criminal prosecution for perjury or
false testimony nor shall he be exempt from demotion or removal
from office.
His above authority enables the Ombudsman to carry out his
constitutional mandate to ensure accountability in the public
service.6 It gives the Ombudsman wide latitude in using an accused
discharged from the information to increase the chances of
conviction of the other accused and attain a higher prosecutorial
goal.7 Immunity statutes seek to provide a balance between the
states interests and the individuals right against selfincrimination. To secure his testimony without exposing him to the
risk of prosecution, the law recognizes that the witness can be
given immunity from prosecution.8 In such a case, both interests
and rights are satisfied.
As it happened in this case, the Ombudsman had already filed with
the Sandiganbayan the criminal action against Mercado and the
other respondents in Criminal Cases 27511-14 prior to the
Ombudsmans grant of immunity to Mercado. Having already
acquired jurisdiction over Mercados case, it remained within the
Sandiganbayans power to determine whether or not he may be
discharged as a state witness in accordance with Section 17, Rule
119 of the Rules of Criminal Procedure.
The Ombudsman premised its grant of immunity to Mercado on his
undertaking to produce all the documents in his possession relative
to the DOF tax credit scam and to testify in all pending criminal,
civil, and administrative cases against those involved. Indeed, he
had consistently cooperated even prior to immunity agreement in
the investigation and prosecution of the case. His testimony gave
the prosecution a clearer picture of the transactions that led to the
issuance of the subject certificates.
In any event, the question before the Sandiganbayan was whether
or not Mercado met, from its point of view, the following
requirements of Section 17, Rule 119 for the discharge of an
accused to be a state witness: (a) there is absolute necessity for
the testimony of the accused whose discharge is requested; (b)

182
there is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said
accused; (c) the testimony of said accused can be substantially
corroborated in its material points; (d) said accused does not
appear to be the most guilty; and (e) said accused has not at any
time been convicted of any offense involving moral turpitude.
The authority to grant immunity is not an inherent judicial
function.9 Indeed, Congress has vested such power in the
Ombudsman as well as in the Secretary of Justice. Besides, the
decision to employ an accused as a state witness must necessarily
originate from the public prosecutors whose mission is to obtain a
successful prosecution of the several accused before the courts.
The latter do not as a rule have a vision of the true strength of the
prosecutions evidence until after the trial is over. Consequently,
courts should generally defer to the judgment of the prosecution
and deny a motion to discharge an accused so he can be used as a
witness only in clear cases of failure to meet the requirements of
Section 17, Rule 119.
Here, the Sandiganbayan held that Mercados testimony is not
absolutely necessary because the state has other direct evidence
that may prove the offenses charged. It held that Mercardos
testimony, in large part, would only help (1) identify numerous
documents and (2) disclose matters that are essentially already
contained in such documents.
But the records, particularly Mercados consolidated affidavit, show
that his testimony if true could be indispensable in establishing the
circumstances that led to the preparation and issuance of
fraudulent tax credit certificates. Indeed, nobody appears to be in
a better position to testify on this than he, as president of JAM
Liner, Inc., the company to which those certificates were issued.
This is what he said in that affidavit:
Sometime in June 1997, Joseph Cabotaje went to Jam Compound
office, approached Jerry Mapalo, the liaison officer of Jam Liner and
claimed that as a former salesman of Diamond Motor Corporation,
he could facilitate the release of the tax credit. He was brought to
my office and impressed upon me that he could do the work as he

personally knows the top brass in the Center, like Raul De Vera,
Assistant Executive Director; Uldarico Andutan, Jr., Deputy Director
and Undersecretary Antonio Belicena.
xxxx
x x x He asked for a fee of 20% of the amount of the tax credit and
explained that this amount he would still share with his
"connections" in the Center.
As Jam Liner[s] application with the Center for the 16 Mitsubishi
bus units was pending, and having nobody to turn to, my liaison
officer recommended that I accept the offer of services of
Cabotaje. There was nothing written about the arrangement and it
was with the understanding of "no cure no pay," meaning Cabotaje
would only be paid after the tax credit certificates were released.
Sometime in July 1997, Cabotaje handed to me tax credit
certificates for P4.4 million and P7.3 million in favor of Jam Liner. I
believed that these certificates were approved upon the
intercession and through the efforts of Cabotaje. The tax credit
certificates were issued on June 30, 1997.
The 2 TCCs were received and handed to me by Mr. Cabotaje.
When he presented the TCCs to me, I noticed that the amount was
bigger than what we were supposed to get. In my estimate, there
was an over evaluation of about 20% equivalent to P100,000.00
per unit, more or less.10
During direct examination by the Sandiganbayan, Mercado also
testified that:
AJ Ponferrada:
The question is, what is unusal about that document?
Answer.
Mr. Mercado:

183
It says here, date complied, when we havent given anything to the
Department of Finance except for those we filed originally on April
11, sir. We have not submitted any document related in this
application other than those we originally filed on April 11, sir. But
it says here, dated (sic) complied, June 26, so, it means, for us, that
we have complied with their requirements while we did not give
any additional documents to them, Your Honors (sic).

charged in the complaint. If that were practicable or possible, there

would be little need for the formality of a trial. In coming to his
conclusions as to the necessity for the testimony of the accused
whose discharge is requested, as to the availability or nonavailability of other direct or corroborative evidence; as to which of
the accused is the most guilty one; and the like, the judge must
rely in a large part upon the suggestions and the information
furnished by the prosecuting officer. x x x." 13 (Emphasis supplied)

xxxx

The date of suspension, sir, was April 13, a few days after we filed
the application and on the third page of Exhibit "KKK-2". If I may
repeat my testimony before, this amount is much bigger than
those we filed with the Department of Finance. But the engine and
chassis number are the same except for the amount, which was
noted toP4,094,000.00, sir.11 x x x

What is more, the criminal informations in these cases charge

respondents with having conspired in approving and issuing the
fraudulent tax credit certificates. One rule of wisdom is that where
a crime is contrived in secret, the discharge of one of the
conspirators is essential so he can testify against the others. 14 Who
else outside the conspiracy can testify about the goings-on that
took place among the accused involved in the conspiracy to
defraud the government in this case?15 No one can underestimate
Mercados testimony since he alone can provide a detailed picture
of the fraudulent scheme that went into the approval and issuance
of the tax credit certificates.1wphi1 The documents can show the
irregularities but not the detailed events that led to their issuance.
As correctly pointed out by the prosecution, Mercados testimony
can fill in the gaps in the evidence.

The decision to move for the discharge of Mercado was part of

prosecutorial discretion in the determination of who should be used
as a state witness to bolster the successful prosecution of criminal
offenses. Unless made in clear violation of the Rules, this
determination should be given great weight by our courts. As this
Court held in People v. Court of Appeals: 12

Respondents further contend that Mercado should not be granted

immunity because he also benefited from the unlawful
transactions. But the immunity granted to Mercado does not blot
out the fact that he committed the offense. While he is liable, the
State saw a higher social value in eliciting information from him
rather than in engaging in his prosecution.16

The Rules do not require absolute certainty in determining those

conditions. Perforce, the Judge has to rely in a large part upon the
suggestions and the considerations presented by the prosecuting
officer.

WHEREFORE, the Court GRANTS the petition, SETS ASIDE the

Sandiganbayans Resolutions of April 30 and November 6, 2008 in
Criminal Cases 27511-14, and ORDERS the discharge of accused
Homero A. Mercado from the criminal information to be used as
state witness.

Q:
What else did you notice aside from the date of suspension?
A:

"A trial judge cannot be expected or required to inform himself with

absolute certainty at the very outset of the trial as to everything
which may be developed in the course of the trial in regard to the
guilty participation of the accused in the commission of the crime

SO ORDERED.

184
Velasco, Jr., (Chairperson), Abad, Perez*, Mendoza, and Leonen, JJ.,
concur.
July 3, 2013
N O T I C E OF J U D G M E N T
Sirs/Mesdames:
Please take notice that on ___June 26, 2013___ a Decision, copy
attached herewith, was rendered by the Supreme Court in the
above-entitled case, the original of which was received by this
Office on July 3, 2013 at 2:25 a.m.
Very truly yours,
(SGD)
LUCITA ABJELINA SORIANO
Division Clerk of Court

185

G.R. No. 76633 October 18, 1988

EASTERN SHIPPING LINES, INC., petitioner,
vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION
(POEA), MINISTER OF LABOR AND EMPLOYMENT, HEARING
OFFICER ABDUL BASAR and KATHLEEN D. SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.

CRUZ, J.:
The private respondent in this case was awarded the sum of
P192,000.00 by the Philippine Overseas Employment
Administration (POEA) for the death of her husband. The decision is
challenged by the petitioner on the principal ground that the POEA
had no jurisdiction over the case as the husband was not an
overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he
was killed in an accident in Tokyo, Japan, March 15, 1985. His
widow sued for damages under Executive Order No. 797 and
Memorandum Circular No. 2 of the POEA. The petitioner, as owner
of the vessel, argued that the complaint was cognizable not by the
POEA but by the Social Security System and should have been filed
against the State Insurance Fund. The POEA nevertheless assumed
jurisdiction and after considering the position papers of the parties
ruled in favor of the complainant. The award consisted of
P180,000.00 as death benefits and P12,000.00 for burial expenses.

The petitioner immediately came to this Court, prompting the

Solicitor General to move for dismissal on the ground of nonexhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to
the National Labor Relations Commission, on the theory inter
alia that the agency should be given an opportunity to correct the
errors, if any, of its subordinates. This case comes under one of the
exceptions, however, as the questions the petitioner is raising are
essentially questions of law. 1 Moreover, the private respondent
himself has not objected to the petitioner's direct resort to this
Court, observing that the usual procedure would delay the
disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created
under Executive Order No. 797, promulgated on May 1, 1982, to
promote and monitor the overseas employment of Filipinos and to
protect their rights. It replaced the National Seamen Board created
earlier under Article 20 of the Labor Code in 1974. Under Section
4(a) of the said executive order, the POEA is vested with "original
and exclusive jurisdiction over all cases, including money claims,
involving employee-employer relations arising out of or by virtue of
any law or contract involving Filipino contract workers, including
seamen." These cases, according to the 1985 Rules and
Regulations on Overseas Employment issued by the POEA, include
"claims for death, disability and other benefits" arising out of such
employment. 2
The petitioner does not contend that Saco was not its employee or
that the claim of his widow is not compensable. What it does urge
is that he was not an overseas worker but a 'domestic employee
and consequently his widow's claim should have been filed with
Social Security System, subject to appeal to the Employees
Compensation Commission.
We see no reason to disturb the factual finding of the POEA that
Vitaliano Saco was an overseas employee of the petitioner at the
time he met with the fatal accident in Japan in 1985.

186
Under the 1985 Rules and Regulations on Overseas Employment,
overseas employment is defined as "employment of a worker
outside the Philippines, including employment on board vessels
plying international waters, covered by a valid contract. 3 A
contract worker is described as "any person working or who has
worked overseas under a valid employment contract and shall
include seamen" 4 or "any person working overseas or who has
been employed by another which may be a local employer, foreign
employer, principal or partner under a valid employment contract
and shall include seamen." 5 These definitions clearly apply to
Vitaliano Saco for it is not disputed that he died while under a
contract of employment with the petitioner and alongside the
petitioner's vessel, the M/V Eastern Polaris, while berthed in a
foreign country. 6
It is worth observing that the petitioner performed at least two acts
which constitute implied or tacit recognition of the nature of Saco's
employment at the time of his death in 1985. The first is its
submission of its shipping articles to the POEA for processing,
formalization and approval in the exercise of its regulatory power
over overseas employment under Executive Order NO. 797. 7 The
second is its payment 8 of the contributions mandated by law and
regulations to the Welfare Fund for Overseas Workers, which was
created by P.D. No. 1694 "for the purpose of providing social and
welfare services to Filipino overseas workers."
Significantly, the office administering this fund, in the receipt it
prepared for the private respondent's signature, described the
subject of the burial benefits as "overseas contract worker Vitaliano
Saco." 9 While this receipt is certainly not controlling, it does
indicate, in the light of the petitioner's own previous acts, that the
petitioner and the Fund to which it had made contributions
considered Saco to be an overseas employee.
The petitioner argues that the deceased employee should be
likened to the employees of the Philippine Air Lines who, although
working abroad in its international flights, are not considered
overseas workers. If this be so, the petitioner should not have
found it necessary to submit its shipping articles to the POEA for
processing, formalization and approval or to contribute to the
Welfare Fund which is available only to overseas workers.

Moreover, the analogy is hardly appropriate as the employees of

the PAL cannot under the definitions given be considered seamen
nor are their appointments coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for
burial expenses was made by the POEA pursuant to its
Memorandum Circular No. 2, which became effective on February
1, 1984. This circular prescribed a standard contract to be adopted
by both foreign and domestic shipping companies in the hiring of
Filipino seamen for overseas employment. A similar contract had
earlier been required by the National Seamen Board and had been
sustained in a number of cases by this Court. 10 The petitioner
claims that it had never entered into such a contract with the
deceased Saco, but that is hardly a serious argument. In the first
place, it should have done so as required by the circular, which
specifically declared that "all parties to the employment of any
Filipino seamen on board any ocean-going vessel are advised to
adopt and use this employment contract effective 01 February
1984 and to desist from using any other format of employment
contract effective that date." In the second place, even if it had not
done so, the provisions of the said circular are nevertheless
deemed written into the contract with Saco as a postulate of the
police power of the State. 11
But the petitioner questions the validity of Memorandum Circular
No. 2 itself as violative of the principle of non-delegation of
legislative power. It contends that no authority had been given the
POEA to promulgate the said regulation; and even with such
authorization, the regulation represents an exercise of legislative
discretion which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in
Section 4(a) of Executive Order No. 797, reading as follows:
... The governing Board of the Administration
(POEA), as hereunder provided shall promulgate
the necessary rules and regulations to govern the
exercise of the adjudicatory functions of the
Administration (POEA).

187
Similar authorization had been granted the National Seamen
Board, which, as earlier observed, had itself prescribed a standard
shipping contract substantially the same as the format adopted by
the POEA.
The second challenge is more serious as it is true that legislative
discretion as to the substantive contents of the law cannot be
delegated. What can be delegated is the discretion to
determine how the law may be enforced, notwhat the law shall be.
The ascertainment of the latter subject is a prerogative of the
legislature. This prerogative cannot be abdicated or surrendered by
the legislature to the delegate. Thus, in Ynot v. Intermediate
Apellate Court 12 which annulled Executive Order No. 626, this
Court held:
We also mark, on top of all this, the questionable
manner of the disposition of the confiscated
property as prescribed in the questioned executive
order. It is there authorized that the seized
property shall be distributed to charitable
institutions and other similar institutions as the
Chairman of the National Meat Inspection
Commission may see fit, in the case of carabaos.'
(Italics supplied.) The phrase "may see fit" is an
extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities
for partiality and abuse, and even corruption. One
searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations
that the officers must observe when they make
their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what
criteria shall they be chosen? Only the officers
named can supply the answer, they and they alone
may choose the grantee as they see fit, and in
their own exclusive discretion. Definitely, there is
here a 'roving commission a wide and sweeping
authority that is not canalized within banks that
keep it from overflowing,' in short a clearly

profligate and therefore invalid delegation of

legislative powers.
There are two accepted tests to determine whether or not there is
a valid delegation of legislative power, viz, the completeness test
and the sufficient standard test. Under the first test, the law must
be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate the only thing
he will have to do is enforce it. 13 Under the sufficient standard
test, there must be adequate guidelines or stations in the law to
map out the boundaries of the delegate's authority and prevent
the delegation from running riot. 14
Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into
the shoes of the legislature and exercise a power essentially
legislative.
The principle of non-delegation of powers is applicable to all the
three major powers of the Government but is especially important
in the case of the legislative power because of the many instances
when its delegation is permitted. The occasions are rare when
executive or judicial powers have to be delegated by the
authorities to which they legally certain. In the case of the
legislative power, however, such occasions have become more and
more frequent, if not necessary. This had led to the observation
that the delegation of legislative power has become the rule and
its non-delegation the exception.
The reason is the increasing complexity of the task of government
and the growing inability of the legislature to cope directly with the
myriad problems demanding its attention. The growth of society
has ramified its activities and created peculiar and sophisticated
problems that the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present-day
undertakings, the legislature may not have the competence to
provide the required direct and efficacious, not to say, specific
solutions. These solutions may, however, be expected from its

188
delegates, who are supposed to be experts in the particular fields
assigned to them.
The reasons given above for the delegation of legislative powers in
general are particularly applicable to administrative bodies. With
the proliferation of specialized activities and their attendant
peculiar problems, the national legislature has found it more and
more necessary to entrust to administrative agencies the authority
to issue rules to carry out the general provisions of the statute.
This is called the "power of subordinate legislation."
With this power, administrative bodies may implement the broad
policies laid down in a statute by "filling in' the details which the
Congress may not have the opportunity or competence to provide.
This is effected by their promulgation of what are known as
supplementary regulations, such as the implementing rules issued
by the Department of Labor on the new Labor Code. These
regulations have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation.
The model contract prescribed thereby has been applied in a
significant number of the cases without challenge by the employer.
The power of the POEA (and before it the National Seamen Board)
in requiring the model contract is not unlimited as there is a
sufficient standard guiding the delegate in the exercise of the said
authority. That standard is discoverable in the executive order itself
which, in creating the Philippine Overseas Employment
Administration, mandated it to protect the rights of overseas
Filipino workers to "fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as
sufficient standards "Public interest" in People v.
Rosenthal 15 "justice and equity" in Antamok Gold Fields v.
CIR 16 "public convenience and welfare" in Calalang v.
Williams 17 and "simplicity, economy and efficiency" in Cervantes v.
Auditor General, 18 to mention only a few cases. In the United
States, the "sense and experience of men" was accepted in Mutual
Film Corp. v. Industrial Commission, 19 and "national security"
in Hirabayashi v. United States. 20

It is not denied that the private respondent has been receiving a

monthly death benefit pension of P514.42 since March 1985 and
that she was also paid a P1,000.00 funeral benefit by the Social
Security System. In addition, as already observed, she also
received a P5,000.00 burial gratuity from the Welfare Fund for
Overseas Workers. These payments will not preclude allowance of
the private respondent's claim against the petitioner because it is
specifically reserved in the standard contract of employment for
Filipino seamen under Memorandum Circular No. 2, Series of 1984,
that
Section C. Compensation and Benefits.
1. In case of death of the seamen during the term
of his Contract, the employer shall pay his
beneficiaries the amount of:
a. P220,000.00 for master and
chief engineers
b. P180,000.00 for other officers,
including radio operators and
master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits
mentioned above shall be separate and distinct
from, and will be in addition to whatever benefits
which the seaman is entitled to under Philippine
laws. ...
3. ...
c. If the remains of the seaman is
buried in the Philippines, the
owners shall pay the beneficiaries
of the seaman an amount not

189
exceeding P18,000.00 for burial
expenses.
The underscored portion is merely a reiteration of Memorandum
Circular No. 22, issued by the National Seamen Board on July
12,1976, providing an follows:
Income Benefits under this Rule Shall be
Considered Additional Benefits.
All compensation benefits under Title II, Book Four
of the Labor Code of the Philippines (Employees
Compensation and State Insurance Fund) shall be
granted, in addition to whatever benefits, gratuities
or allowances that the seaman or his beneficiaries
may be entitled to under the employment contract
approved by the NSB. If applicable, all benefits
under the Social Security Law and the Philippine
Medicare Law shall be enjoyed by the seaman or
his beneficiaries in accordance with such laws.
The above provisions are manifestations of the concern of the
State for the working class, consistently with the social justice
policy and the specific provisions in the Constitution for the
protection of the working class and the promotion of its interest.

on ad infinitumon their respective administrative regulations. Such

an arrangement has been accepted as a fact of life of modern
governments and cannot be considered violative of due process as
long as the cardinal rights laid down by Justice Laurel in the
landmark case of Ang Tibay v. Court of Industrial Relations 21 are
observed.
Whatever doubts may still remain regarding the rights of the
parties in this case are resolved in favor of the private respondent,
in line with the express mandate of the Labor Code and the
principle that those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on
the scales of social justice, the heavier influence of the latter must
be counter-balanced by the sympathy and compassion the law
must accord the underprivileged worker. This is only fair if he is to
be given the opportunity and the right to assert and defend his
cause not as a subordinate but as a peer of management, with
which he can negotiate on even plane. Labor is not a mere
employee of capital but its active and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the
petitioner. The temporary restraining order dated December 10,
1986 is hereby LIFTED. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

One last challenge of the petitioner must be dealt with to close t

case. Its argument that it has been denied due process because
the same POEA that issued Memorandum Circular No. 2 has also
sustained and applied it is an uninformed criticism of
administrative law itself. Administrative agencies are vested with
two basic powers, the quasi-legislative and the quasi-judicial. The
first enables them to promulgate implementing rules and
regulations, and the second enables them to interpret and apply
such regulations. Examples abound: the Bureau of Internal
Revenue adjudicates on its own revenue regulations, the Central
Bank on its own circulars, the Securities and Exchange Commission
on its own rules, as so too do the Philippine Patent Office and the
Videogram Regulatory Board and the Civil Aeronautics
Administration and the Department of Natural Resources and so

190

BAI SANDRA S. A. SEMA, G.R. No. 177597

CARPIO,

Petitioner,

AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,

- versus -

- versus - AZCUNA,
TINGA,

COMMISSION ON ELECTIONS

CHICO-NAZARIO,

and DIDAGEN P. DILANGALEN,

VELASCO, JR.,

Respondents.

NACHURA,

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

REYES,

PERFECTO F. MARQUEZ, G.R. No. 178628

LEONARDODE CASTRO,
and

Petitioner,

BRION, JJ.

Present:

PUNO, C.J.,

COMMISSION ON ELECTIONS, Promulgated:

QUISUMBING,

Respondent. July 16, 2008

YNARES-SANTIAGO,

191
x-------------------------------------------------x

DECISION

CARPIO, J.:

The Ordinance appended to the 1987 Constitution apportioned two

legislative districts for the Province of Maguindanao. The first
legislative
district
consists
of Cotabato City and
eight
municipalities.[3] Maguindanao forms part of the Autonomous
Region in Muslim Mindanao (ARMM), created under its Organic Act,
Republic Act No. 6734 (RA 6734), as amended by Republic Act No.
9054 (RA
9054).[4] Although
under
the
Ordinance, Cotabato City forms part of Maguindanaos first
legislative district, it is not part of the ARMM but of Region XII,
having voted against its inclusion in the ARMM in the plebiscite
held in November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional

Assembly, exercising its power to create provinces under Section
19, Article VI of RA 9054, [5] enacted Muslim Mindanao Autonomy
Act No. 201 (MMA Act 201) creating the Province ofShariff
Kabunsuan composed of the eight municipalities in the first district
of Maguindanao. MMA Act 201 provides:
The Case

These consolidated petitions[1] seek to annul Resolution No. 7902,

dated 10 May 2007, of the Commission on Elections (COMELEC)
treating Cotabato City as part of the legislative district of the
Province of Shariff Kabunsuan.[2]

Section 1. The Municipalities of Barira, Buldon,

Datu Odin Sinsuat, Kabuntalan, Matanog, Parang,
Sultan Kudarat, Sultan Mastura, and Upi are hereby
separated from the Province of Maguindanao and
constituted into a distinct and independent
province, which is hereby created, to be known as
the Province of Shariff Kabunsuan.

xxxx
The Facts

Sec. 5. The corporate existence of this

province shall commence upon the appointment by

192
the Regional Governor or election of the governor
and majority of the regular members of the
Sangguniang Panlalawigan.

Maguindanao were the municipalities constituting its second

legislative district. Cotabato City, although part of Maguindanaos
first legislative district, is not part of the Province of Maguindanao.

The incumbent elective provincial officials of the

Province of Maguindanao shall continue to serve
their unexpired terms in the province that they will
choose or where they are residents: Provided, that
where an elective position in both provinces
becomes vacant as a consequence of the creation
of the Province of Shariff Kabunsuan, all incumbent
elective provincial officials shall have preference
for appointment to a higher elective vacant
position and for the time being be appointed by the
Regional Governor, and shall hold office until their
successors shall have been elected and qualified in
the next local elections; Provided, further, that they
shall continue to receive the salaries they are
receiving at the time of the approval of this Act
until the new readjustment of salaries in
accordance with law. Provided, furthermore, that
there shall be no diminution in the number of the
members of the Sangguniang Panlalawigan of the
mother province.

The voters of Maguindanao ratified Shariff Kabunsuans

creation in a plebiscite held on 29 October 2006.

Except as may be provided by national law, the

existing
legislative
district,
which
includes
Cotabato as a part thereof, shall remain.

Later, three new municipalities[6] were carved out of the original

nine municipalities constituting Shariff Kabunsuan, bringing its
total number of municipalities to 11. Thus, what was left of

On 6 February 2007, the Sangguniang Panlungsod of

Cotabato City passed Resolution No. 3999 requesting the COMELEC
to clarify the status of Cotabato City in view of the conversion of
the First District of Maguindanao into a regular province under MMA
Act 201.
In answer to Cotabato Citys query, the COMELEC issued Resolution
No. 07-0407 on 6 March 2007 "maintaining the status quo
with Cotabato City as part of Shariff Kabunsuan in the First
Legislative District of Maguindanao. Resolution No. 07-0407, which
adopted the recommendation of the COMELECs Law Department
under a Memorandum dated 27 February 2007,[7] provides in
pertinent parts:

Considering the foregoing, the Commission

RESOLVED, as it hereby resolves, to adopt the
recommendation
of
the
Law
Department
thatpending the enactment of the appropriate
law by Congress, to maintain the status quo
with Cotabato City as part of Shariff Kabunsuan in
the
First
Legislative
District
of
Maguindanao. (Emphasis supplied)

193
However, in preparation for the 14 May 2007 elections, the
COMELEC promulgated on 29 March 2007 Resolution No. 7845
stating that Maguindanaos first legislative district is composed only
of Cotabato City because of the enactment of MMA Act 201.[8]

prohibition in G.R. No. 177597 became moot with the proclamation

of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1
June 2007 as representative of the legislative district of Shariff
Kabunsuan Province with Cotabato City.

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject

of these petitions, amending Resolution No. 07-0407 by renaming
the
legislative
district
in
question
as Shariff Kabunsuan Province with Cotabato City (formerly
First
District of Maguindanao with Cotabato City).[9]

In his Comment, respondent Dilangalen countered that Sema is

estopped from questioning COMELEC Resolution No. 7902 because
in her certificate of candidacy filed on 29 March 2007, Sema
indicated that she was seeking election as representative of Shariff
Kabunsuan including Cotabato City. Respondent Dilangalen added
that COMELEC Resolution No. 7902 is constitutional because it did
not apportion a legislative district for Shariff Kabunsuan or
reapportion the legislative districts in Maguindanao but merely
renamed Maguindanaos first legislative district. Respondent
Dilangalen further claimed that the COMELEC could not reapportion
Maguindanaos first legislative district to make Cotabato City its
sole component unit as the power to reapportion legislative
districts lies exclusively with Congress, not to mention that
Cotabato City does not meet the minimum population requirement
under Section 5 (3), Article VI of the Constitution for the creation of
a legislative district within a city.[13]

In G.R. No. 177597, Sema, who was a candidate in the 14 May

2007 elections
for
Representative
of
Shariff
Kabunsuan
withCotabato City, prayed for the nullification of COMELEC
Resolution No. 7902 and the exclusion from canvassing of the
votes cast in Cotabato City for that office. Sema contended that
Shariff Kabunsuan is entitled to one representative in Congress
under Section 5 (3), Article VI of the Constitution [10] and Section 3
of the Ordinance appended to the Constitution. [11] Thus, Sema
asserted that the COMELEC acted without or in excess of its
jurisdiction in issuing Resolution No. 7902 which maintained the
status quo in Maguindanaos first legislative district despite the
COMELECs earlier directive in Resolution No. 7845 designating
Cotabato City as the lone component of Maguindanaos
reapportioned first legislative district.[12] Sema further claimed that
in issuing Resolution No. 7902, the COMELEC usurped Congress
power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor

General (OSG), chose not to reach the merits of the case and
merely contended that (1) Sema wrongly availed of the writ of
certiorari to nullify COMELEC Resolution No. 7902 because the
COMELEC issued the same in the exercise of its administrative, not
quasi-judicial, power and (2) Semas prayer for the writ of

Sema filed a Consolidated Reply controverting the matters raised

in respondents Comments and reiterating her claim that the
COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required

the parties in G.R. No. 177597 to comment on the issue of whether
a province created by the ARMM Regional Assembly under Section
19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a
legislative district for such new province. The parties submitted
their compliance as follows:

194

(1) Sema answered the issue in the affirmative on the

following grounds: (a) the Court in Felwa v. Salas[14] stated that
when a province is created by statute, the corresponding
representative district comes into existence neither by authority of
that statute which cannot provide otherwise nor by apportionment,
but by operation of the Constitution, without a reapportionment;
(b) Section 462 of Republic Act No. 7160 (RA 7160) affirms the
apportionment of a legislative district incident to the creation of a
province; and (c) Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution mandate
theapportionment of a legislative district in newly created
provinces.

(2) The COMELEC, again represented by the OSG,

apparently abandoned its earlier stance on the propriety of issuing
Resolution Nos. 07-0407 and 7902 and joined causes with Sema,
contending that Section 5 (3), Article VI of the Constitution is selfexecuting. Thus, every new province created by the ARMM
Regional Assembly is ipso facto entitled to one representative in
the House of Representatives even in the absence of a national
law; and

(3) Respondent Dilangalen answered the issue in the

negative on the following grounds: (a) the province contemplated
in Section 5 (3), Article VI of the Constitution is one that is created
by an act of Congress taking into account the provisions in RA 7160
on the creation of provinces; (b) Section 3, Article IV of RA 9054
withheld from the ARMM Regional Assembly the power to enact
measures relating to national elections, which encompasses the
apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every
province the ARMM Regional Assembly creates will lead to the
disproportionate representation of the ARMM in the House of
Representatives as the Regional Assembly can create provinces

without regard to the requirements in Section 461 of RA 7160; and

(d) Cotabato City, which has a population of less than 250,000, is
not entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in

G.R. No. 177597 in oral arguments on the following issues: (1)
whether Section 19, Article VI of RA 9054, delegating to the ARMM
Regional Assembly the power to create provinces, is constitutional;
and (2) if in the affirmative, whether a province created under
Section 19, Article VI of RA 9054 is entitled to one representative in
the House of Representatives without need of a national law
creating a legislative district for such new province. [15]

In compliance with the

2007, the parties in G.R. No.
Memoranda on the issues raised
question of the constitutionality
9054, the parties in G.R. No.
positions:

Resolution dated 27 November

177597 filed their respective
in the oral arguments. [16] On the
of Section 19, Article VI of RA
177597 adopted the following

(1) Sema contended that Section 19, Article VI of RA 9054

is constitutional (a) as a valid delegation by Congress to the ARMM
of the power to create provinces under Section 20 (9), Article X of
the Constitution granting to the autonomous regions, through their
organic acts, legislative powers over other matters as may be
authorized by law for the promotion of the general welfare of the
people of the region and (b) as an amendment to Section 6 of RA
7160.[17] However, Sema concedes that, if taken literally, the grant
in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly
of the power to prescribe standards lower than those mandated in
RA 7160 in the creation of provinces contravenes Section 10,
Article X of the Constitution.[18] Thus, Sema proposed that Section
19 should be construed as prohibiting the Regional Assembly from

195
prescribing standards x x x that do not comply with the minimum
criteria under RA 7160.[19]

(2) Respondent Dilangalen contended that Section

19, Article VI of RA 9054 is unconstitutional on the following
grounds: (a) the power to create provinces was not among those
granted to the autonomous regions under Section 20, Article X of
the Constitution and (b) the grant under Section 19, Article VI of RA
9054 to the ARMM Regional Assembly of the power to prescribe
standards lower than those mandated in Section 461 of RA 7160 on
the creation of provinces contravenes Section 10, Article X of the
Constitution and the Equal Protection Clause; and

The pendency of the petition in G.R. No. 178628 was

disclosed during the oral arguments on 27 November 2007. Thus,
in the Resolution of 19 February 2008, the Court ordered G.R.
No. 178628 consolidated with G.R. No. 177597. The petition in G.R.
No.178628 echoed Sema's contention that the COMELEC
acted ultra vires in issuing Resolution No. 7902 depriving the
voters ofCotabato City of a representative in the House of
Representatives. In its Comment to the petition in G.R. No. 178628,
the COMELEC, through the OSG, maintained the validity of
COMELEC Resolution No. 7902 as a temporary measure pending
the enactment by Congress of the appropriate law.

The Issues
(3) The COMELEC, through the OSG, joined causes with
respondent Dilangalen (thus effectively abandoning the position
the COMELEC adopted in its Compliance with the Resolution of 4
September 2007) and contended that Section 19, Article VI of RA
9054 is unconstitutional because (a) it contravenes Section 10 and
Section 6,[20] Article X of the Constitution and (b) the power to
create provinces was withheld from the autonomous regions under
Section 20, Article X of the Constitution.

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily

On the question of whether a province created under

Section 19, Article VI of RA 9054 is entitled to one representative in
the House of Representatives without need of a national law
creating a legislative district for such new province, Sema and
respondent Dilangalen reiterated in their Memoranda the positions
they adopted in their Compliance with the Resolution of 4
September 2007. The COMELEC deemed it unnecessary to submit
its position on this issue considering its stance that Section 19,
Article VI of RA 9054 is unconstitutional.

(1) whether the writs of Certiorari, Prohibition, and

Mandamus are proper to test the constitutionality of COMELEC
Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as
representative
of Shariff Kabunsuan Province with Cotabato Citymooted
the
petition in G.R. No. 177597.

196
The petitions have no merit. We rule that (1) Section 19, Article VI
of RA 9054 is unconstitutional insofar as it grants to the ARMM
Regional Assembly the power to create provinces and cities; (2)
MMA Act 201 creating the Province of Shariff Kabunsuan is void;
and (3) COMELEC Resolution No. 7902 is valid.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to
the ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the
ARMM Regional Assembly under MMA Act 201 pursuant to Section
19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a
legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether

COMELEC Resolution No. 7902 is valid for maintaining the status
quo in the first legislative district of Maguindanao (as Shariff
Kabunsuan Province with Cotabato City [formerly First District of
Maguindanao with Cotabato City]), despite the creation of the
Province of Shariff Kabunsuan out of such district (excluding
Cotabato City).

On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations
The Ruling of the Court

197
The purpose of the writ of Certiorari is to correct grave
abuse of discretion by any tribunal, board, or officer exercising
judicial or quasi-judicial functions.[21] On the other hand, the writ of
Mandamus will issue to compel a tribunal, corporation, board,
officer, or person to perform an act which the law specifically
enjoins as a duty.[22] True, the COMELEC did not issue Resolution
No. 7902 in the exercise of its judicial or quasi-judicial functions.
[23]
Nor is there a law which specifically enjoins the COMELEC to
exclude from canvassing the votes cast in Cotabato City for
representative
of Shariff Kabunsuan Province with Cotabato City.
These, however, do not justify the outright dismissal of the petition
in G.R. No. 177597 because Sema also prayed for the issuance of
the writ of Prohibition and we have long recognized this writ as
proper for testing the constitutionality of election laws, rules, and
regulations.[24]

no reason for us not to proceed with the resolution of the novel

issues raised here. The Courts ruling in these petitions affects not
only the recently concluded elections but also all the other
succeeding elections for the office in question, as well as the power
of the ARMM Regional Assembly to create in the future additional
provinces.

On the Main Issues

Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by Section 10,
Article X of the Constitution, which provides:

Respondent Dilangalens Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalens

proclamation as winner in the 14 May 2007 elections for
representative
of Shariff Kabunsuan Province with Cotabato City mooted
this
petition. This case does not concern respondent Dilangalens
election. Rather, it involves an inquiry into the validity of COMELEC
Resolution No. 7902, as well as the constitutionality of MMA Act
201 and Section 19, Article VI of RA 9054. Admittedly, the outcome
of this petition, one way or another, determines whether the votes
cast
in Cotabato City for
representative
of
the
district
of Shariff Kabunsuan Province withCotabato City will be included in
the canvassing of ballots. However, this incidental consequence is

Sec. 10. No province, city, municipality, or

barangay may be created, divided, merged,
abolished or its boundary substantially altered
except in accordance with the criteria established
in the local government code and subject to
approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
Thus, the creation of any of the four local government units
province, city, municipality or barangay must comply with three
conditions. First, the creation of a local government unit must
follow the criteria fixed in the Local Government Code. Second,
such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units
affected.
There is neither an express prohibition nor an express grant of
authority in the Constitution for Congress to delegate to regional or
local legislative bodies the power to create local government units.
However, under its plenary legislative powers, Congress can
delegate to local legislative bodies the power to create local

198
government units, subject to reasonable standards and provided
no conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and
municipal councils, the power to create barangays within their
jurisdiction,[25] subject to compliance with the criteria established in
the Local Government Code, and the plebiscite requirement in
Section 10, Article X of the Constitution. However, under the Local
Government Code, only x x x an Act of Congress can create
provinces, cities or municipalities.[26]
Under Section 19, Article VI of RA 9054, Congress delegated to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM. Congress made the
delegation under its plenary legislative powers because the power
to create local government units is not one of the express
legislative powers granted by the Constitution to regional
legislative bodies.[27] In the present case, the question arises
whether the delegation to the ARMM Regional Assembly of the
power to create provinces, cities, municipalities and barangays
conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the
delegation to regional legislative bodies of the power to create
municipalities and barangays, provided Section 10, Article X of the
Constitution is followed. However, the creation of provinces and
cities is another matter. Section 5 (3), Article VI of the Constitution
provides, Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative
in the House of Representatives. Similarly, Section 3 of the
Ordinance appended to the Constitution provides, Any province
that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall
be entitled in the immediately following election to at least one
Member x x x.
Clearly, a province cannot be created without a legislative
district because it will violate Section 5 (3), Article VI of the
Constitution as well as Section 3 of the Ordinance appended to the
Constitution. For the same reason, a city with a population of
250,000 or more cannot also be created without a legislative
district. Thus, the power to create a province, or a city with a
population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of
less than 250,000 involves the power to create a legislative district

because once the citys population reaches 250,000, the city

automatically becomes entitled to one representative under
Section 5 (3), Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. Thus, the power to
create a province or city inherently involves the power to
create a legislative district.
For Congress to delegate validly the power to create a
province or city, it must also validly delegate at the same time the
power to create a legislative district. The threshold issue then is,
can Congress validly delegate to the ARMM Regional Assembly the
power to create legislative districts for the House of
Representatives? The answer is in the negative.

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

Under the present Constitution, as well as in

past[28] Constitutions, the power to increase the allowable
membership in the House of Representatives, and to reapportion
legislative districts, is vested exclusively in Congress. Section 5,
Article VI of the Constitution provides:

SECTION
5.
(1)
The
House
of
Representatives shall be composed of not more
than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected
from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective
inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of
registered national, regional, and sectoral parties
or organizations.

199

xxxx

(3) Each legislative district shall comprise,

as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at
least two hundred fifty thousand, or each province,
shall have at least one representative.

(4) Within three years following the return

of every census, the Congress shall make a
reapportionment of legislative districtsbased
on the standards provided in this section.
(Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in

Congress the power to increase, through a law, the allowable
membership in the House of Representatives. Section 5 (4)
empowers Congress to reapportion legislative districts. The power
to reapportion legislative districts necessarily includes the power to
create legislative districts out of existing ones. Congress exercises
these powers through a law that Congress itself enacts, and not
through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be
increased, and new legislative districts of Congress can be created,
only through a national law passed by Congress. In Montejo v.
COMELEC,[29] we held that the power of redistricting x x x is
traditionally regarded as part of the power (of Congress) to make
laws, and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive

power to create or reapportion legislative districts is logical.
Congress is a national legislature and any increase in its allowable
membership or in its incumbent membership through the creation
of legislative districts must be embodied in a national law. Only
Congress can enact such a law. It would be anomalous for regional
or local legislative bodies to create or reapportion legislative
districts for a national legislature like Congress. An inferior
legislative body, created by a superior legislative body, cannot
change the membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative

powers to its Regional Assembly under its organic act, did not
divest Congress of its exclusive authority to create legislative
districts. This is clear from the Constitution and the ARMM Organic
Act, as amended. Thus, Section 20, Article X of the Constitution
provides:

200
SECTION
20. Within
its
territorial
jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of
autonomous regions shall provide for legislative
powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral
resources;

domain

and

natural

(4) Personal, family, and property relations;

(5) Regional
development;
(6) Economic,
development;

urban

and

social,

rural

planning

and

tourism

On the other hand, Section 3, Article IV of RA 9054

amending the ARMM Organic Act, provides, The Regional
Assembly may exercise legislative power x x x except on
the following matters: x x x (k) National elections. x x
x. Since the ARMM Regional Assembly has no legislative power to
enact laws relating to national elections, it cannot create a
legislative district whose representative is elected in national
elections. Whenever Congress enacts a law creating a legislative
district, the first representative is always elected in the next
national elections from the effectivity of the law.[30]
Indeed, the office of a legislative district representative to
Congress is a national office, and its occupant, a Member of the
House of Representatives, is a national official.[31] It would be
incongruous for a regional legislative body like the ARMM Regional
Assembly to create a national office when its legislative powers
extend only to its regional territory. The office of a district
representative is maintained by national funds and the salary of its
occupant is paid out of national funds. It is a self-evident inherent
limitation on the legislative powers of every local or regional
legislative body that it can only create local or regional offices,
respectively, and it can never create a national office.

(7) Educational policies;

(8) Preservation and development of the
cultural heritage; and
(9) Such other matters as may be
authorized by law for the promotion of the general
welfare of the people of the region.

Nothing in Section 20, Article X of the Constitution

authorizes autonomous regions, expressly or impliedly, to
create or reapportion legislative districts for Congress.

To allow the ARMM Regional Assembly to create a national

office is to allow its legislative powers to operate outside the
ARMMs territorial jurisdiction. This violates Section 20, Article
X of the Constitution which expressly limits the coverage of
the Regional Assemblys legislative powers [w]ithin its
territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff

Kabunsuan, recognized the exclusive nature of Congress power to
create or reapportion legislative districts by abstaining from
creating a legislative district for Shariff Kabunsuan. Section 5 of
MMA Act 201 provides that:

201

Except as may be provided by national

law, the existing legislative district, which includes
Cotabato
City
as
a
part
thereof,
shall
remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative

district because the Constitution mandates that each province shall
have at least one representative. Thus, the creation of the Province
of
Shariff Kabunsuan without a legislative district is
unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3),

Article VI of the Constitution, which provides:

Each legislative district shall comprise, as

far as practicable, contiguous, compact, and
adjacent territory. Each city with a population
of at least two hundred fifty thousand,
or each province, shall have at least one
representative. (Emphasis supplied)

fifty thousand shall be entitled in the

immediately following election to at least one
Member or such number of Members as it
may be entitled to on the basis of the number
of its inhabitants and according to the
standards set forth in paragraph (3), Section
5 of Article VI of the Constitution. The number
of Members apportioned to the province out of
which such new province was created or where the
city, whose population has so increased, is
geographically located shall be correspondingly
adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred
and twenty days before the election. (Emphasis
supplied)

serve as bases for the conclusion that the Province of Shariff

Kabunsuan, created on 29 October 2006, is automatically entitled
to one member in the House of Representatives in the 14 May
2007 elections. As further support for her stance, petitioner
invokes the statement in Felwa that when a province is created by
statute, the corresponding representative district comes into
existence neither by authority of that statute which cannot provide
otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment.

The contention has no merit.

and Section 3 of the Ordinance appended to the Constitution,
which states:

Any province that may hereafter be

created, or any city whose population may
hereafter increase to more than two hundred

First. The issue in Felwa, among others, was whether Republic Act
No. 4695 (RA 4695), creating the provinces of Benguet, Mountain
Province,
Ifugao,
and
Kalinga-Apayao and
providing
for
congressional representation in the old and new provinces, was
unconstitutional for creati[ng] congressional districts without the

202
apportionment provided in the Constitution. The Court answered in
the negative, thus:

The Constitution ordains:

The House of Representatives shall

be composed of not more than one
hundred and twenty Members who
shall be apportioned among the
several provinces as nearly as may
be according to the number of their
respective inhabitants, but each
province shall have at least one
Member. The Congress shall by law
make an apportionment within
three years after the return of
every
enumeration,
and
not
otherwise.
Until
such
apportionment shall have been
made,
the
House
of
Representatives shall have the
same number of Members as that
fixed by law for the National
Assembly, who shall be elected by
the qualified electors from the
present Assembly districts. Each
representative
district
shall
comprise as far as practicable,
contiguous and compact territory.
Pursuant to this Section, a representative
district may come into existence: (a)
indirectly, through the creation of a province
for each province shall have at least one
member in the House of Representatives; or
(b)
by
direct
creation
of
several

representative districts within a province. The

requirements concerning the apportionment of
representative districts and the territory thereof
refer only to the second method of creation of
representative districts, and do not apply to those
incidental to the creation of provinces, under the
first method. This is deducible, not only from the
general tenor of the provision above quoted, but,
also, from the fact that the apportionment therein
alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created
by statute, the corresponding representative
district, comes into existence neither by
authority of that statute which cannot
provide otherwise nor by apportionment, but
by operation of the Constitution, without a
reapportionment.
There is no constitutional limitation as to the time
when, territory of, or other conditions under which
a province may be created, except, perhaps, if the
consequence thereof were to exceed the maximum
of 120 representative districts prescribed in the
Constitution, which is not the effect of the
legislation under consideration. As a matter of fact,
provinces have been created or subdivided into
other provinces, with the consequent creation of
additional
representative
districts,
without
complying with the aforementioned requirements.
[32]
(Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695

because (1)
it
validly
created
legislative
districts
indirectly through
a
special
law
enacted
by
Congress creating a province and (2) the creation of the
legislative districts will not result in breaching the maximum

203
number of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case because
inFelwa the new provinces were created by a national law
enacted by Congress itself. Here, the new province was created
merely by a regional law enacted by the ARMM Regional
Assembly.

What Felwa teaches is that the creation of a legislative

district by Congress does not emanate alone from Congress power
to reapportion legislative districts, but also from Congress power to
create provinces which cannot be created without a legislative
district. Thus, when a province is created, a legislative district is
created by operation of the Constitution because the
Constitution provides that each province shall have at least
one representative in the House of Representatives. This does
not detract from the constitutional principle that the power to
create legislative districts belongs exclusively to Congress. It
merely prevents any other legislative body, except Congress, from
creating provinces because for a legislative body to create a
province such legislative body must have the power to create
legislative districts. In short, only an act of Congress can trigger
the creation of a legislative district by operation of the
Constitution. Thus, only Congress has the power to create, or
trigger the creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a

legislative district to Shariff Kabunsuan upon its creation, this will
leave Cotabato City as the lone component of the first legislative
district of Maguindanao. However, Cotabato City cannot constitute
a legislative district by itself because as of the census taken in
2000, it had a population of only 163,849. To constitute Cotabato
City alone as the surviving first legislative district of Maguindanao
will violate Section 5 (3), Article VI of the Constitution which
requires that [E]ach city with a population of at least two hundred
fifty thousand x x x, shall have at least one representative.

Second. Semas theory also undermines the composition

and independence of the House of Representatives. Under Section
19,[33] Article VI of RA 9054, the ARMM Regional Assembly can
create provinces and cities within the ARMM with or
withoutregard to the criteria fixed in Section 461 of RA 7160,
namely: minimum annual income of P20,000,000, and minimum
contiguous territory of 2,000 square kilometers or minimum
population of 250,000.[34] The following scenarios thus become
distinct possibilities:

(1) An inferior legislative body like the

ARMM Regional Assembly can create 100 or more
provinces and thus increase the membership of a
superior
legislative
body,
the
House
of Representatives, beyond the maximum limit of
250 fixed in the Constitution (unless a national law
provides otherwise);

(2) The proportional representation in the

House
of Representatives
based
on
one
representative for at least every 250,000 residents
will be negated because the ARMM Regional
Assembly need not comply with the requirement in
Section 461(a)(ii) of RA 7160 that every province
created must have a population of at least
250,000; and

(3) Representatives from the ARMM

provinces can become the majority in the House of
Representatives through the ARMM Regional
Assemblys continuous creation of provinces or
cities within the ARMM.

204

Yes, Your Honor, under the correct factual

circumstances.
The following exchange during the oral arguments of the
petition in G.R. No. 177597 highlights the absurdity of Semas
position that the ARMM Regional Assembly can create provinces:
Justice Carpio:
Under your theory, the ARMM legislature
can create thirty-five (35) new provinces,
there may be x x x [only] one hundred
thousand (100,000) [population], x x x, and
they will each have one representative x x
x to Congress without any national law, is
that what you are saying?

Justice Carpio:
So, you mean to say [a] Local Government
can create legislative district[s] and pack
Congress with their own representatives [?]

Atty. Vistan II:

Atty. Vistan II:

[35]

Yes, Your Honor, because the Constitution allows that.

Without law passed by Congress, yes, Your

Honor, that is what we are saying.

Justice Carpio:
So, [the] Regional Assembly of [the] ARMM
can create and create x x x provinces x x
x and, therefore, they can have thirty-five
(35) new representatives in the House of
Representatives without Congress agreeing
to it, is that what you are saying? That can
be done, under your theory[?]

Atty. Vistan II:

xxxx
Justice Carpio:
So, they can also create one thousand
(1000) new provinces, sen[d] one
thousand (1000) representatives to
the House of Representatives without
a national law[,] that is legally
possible, correct?

205

Atty. Vistan II:

Yes, Your Honor.[36] (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting

the provisions in Article X on regional autonomy, [37] nor Congress in
enacting RA 9054, envisioned or intended these disastrous
consequences that certainly would wreck the tri-branch system of
government under our Constitution. Clearly, the power to create or
reapportion legislative districts cannot be delegated by Congress
but must be exercised by Congress itself. Even the ARMM Regional
Assembly recognizes this.

The Constitution empowered Congress to create or reapportion

legislative districts, not the regional assemblies. Section 3 of the
Ordinance to the Constitution which states, [A]ny province that
may hereafter be created x x x shall be entitled in the immediately
following election to at least one Member, refers to a province
created by Congress itself through a national law. The reason is
that the creation of a province increases the actual membership of
the House of Representatives, an increase that only Congress can
decide. Incidentally, in the present 14th Congress, there are
219[38] district representatives out of the maximum 250 seats in the
House of Representatives. Since party-list members shall constitute
20 percent of total membership of the House, there should at least
be 50 party-list seats available in every election in case 50 partylist candidates are proclaimed winners. This leaves only 200 seats
for district representatives, much less than the 219 incumbent
district representatives. Thus, there is a need now for Congress to
increase by law the allowable membership of the House, even
before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot

prevail over the Constitution. Section 20, Article X of the
Constitution expressly provides that the legislative powers of
regional
assemblies
are
limited [w]ithin
its
territorial
jurisdiction and subject to the provisions of the
Constitution and national laws, x x x. The Preamble of the
ARMM Organic Act (RA 9054) itself states that the ARMM
Government is established within the framework of the
Constitution. This follows Section 15, Article X of the Constitution
which mandates that the ARMM shall be created x x x within
the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic
of the Philippines.

The present case involves the creation of a local

government unit that necessarily involves also the creation of a
legislative district. The Court will not pass upon the

206
constitutionality of the creation of municipalities and barangays
that does not comply with the criteria established in Section 461 of
RA 7160, as mandated in Section 10, Article X of the Constitution,
because the creation of such municipalities and barangays does
not involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar

as it grants to the ARMM Regional Assembly the power to create
provinces and cities, is void for being contrary to Section 5 of
Article VI and Section 20 of Article X of the Constitution, as well as
Section 3 of the Ordinance appended to the Constitution. Only
Congress can create provinces and cities because the creation of
provinces and cities necessarily includes the creation of legislative
districts, a power only Congress can exercise under Section 5,
Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution. The ARMM Regional Assembly
cannot create a province without a legislative district because the
Constitution mandates that every province shall have a legislative
district.Moreover, the ARMM Regional Assembly cannot enact a law
creating a national office like the office of a district representative
of Congress because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as provided
in Section 20, Article X of the Constitution. Thus, we rule that MMA
Act 201, enacted by the ARMM Regional Assembly and creating the
Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902,

preserving the geographic and legislative district of the First
District of Maguindanao with Cotabato City, is valid as it merely
complies with Section 5 of Article VI and Section 20 of Article X of

the Constitution, as well as Section 1 of the Ordinance appended to

the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No.

9054 UNCONSTITUTIONAL insofar as it grants to the Regional
Assembly of the Autonomous Region in Muslim Mindanao the
power to create provinces and cities. Thus, we declareVOID Muslim
Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No.
7902 is VALID.

Let a copy of this ruling be served on the President of the

Senate and the Speaker of the House of Representatives.

SO ORDERED.

207
G.R. No. 166715
August 14, 2008
ABAKADA GURO PARTY LIST (formerly
AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED
VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE
and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of
Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity
as Commissioner of the Bureau of Internal Revenue, and
HON. ALBERTO D. LINA, in his Capacity as Commissioner of
Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 9335 2 (Attrition Act
of 2005).
RA 9335 was enacted to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board). 3 It covers all
officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in
excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR
and the BOC in proportion to their contribution in the excess
collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary
of the Department of Finance (DOF) or his/her Undersecretary, the
Secretary of the Department of Budget and Management (DBM) or
his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy
Director General, the Commissioners of the BIR and the BOC or
their Deputy Commissioners, two representatives from the rankand-file employees and a representative from the officials
nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines
for the allocation, distribution and release of the Fund; (2) set
criteria and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3)

terminate personnel in accordance with the criteria adopted by the

Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules
and regulations of RA 9335,8 to be approved by a Joint
Congressional Oversight Committee created for such purpose. 9
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform
legislation. They contend that, by establishing a system of rewards
and incentives, the law "transform[s] the officials and employees of
the BIR and the BOC into mercenaries and bounty hunters" as they
will do their best only in consideration of such rewards. Thus, the
system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials
and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of
rewards and incentives only to officials and employees of the BIR
and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction as
to why such a system should not apply to officials and employees
of all other government agencies.
In addition, petitioners assert that the law unduly delegates the
power to fix revenue targets to the President as it lacks a sufficient
standard on that matter. While Section 7(b) and (c) of RA 9335
provides that BIR and BOC officials may be dismissed from the
service if their revenue collections fall short of the target by at
least 7.5%, the law does not, however, fix the revenue targets to
be achieved. Instead, the fixing of revenue targets has been
delegated to the President without sufficient standards. It will
therefore be easy for the President to fix an unrealistic and
unattainable target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight
committee on the ground that it violates the doctrine of separation
of powers. While the legislative function is deemed accomplished
and completed upon the enactment and approval of the law, the
creation of the congressional oversight committee permits
legislative participation in the implementation and enforcement of
the law.
In their comment, respondents, through the Office of the Solicitor
General, question the petition for being premature as there is no
actual case or controversy yet. Petitioners have not asserted any

208
right or claim that will necessitate the exercise of this Courts
jurisdiction. Nevertheless, respondents acknowledge that public
policy requires the resolution of the constitutional issues involved
in this case. They assert that the allegation that the reward system
will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective
of RA 9335, the law validly classifies the BIR and the BOC because
the functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law
provides a sufficient standard that will guide the executive in the
implementation of its provisions. Lastly, the creation of the
congressional oversight committee under the law enhances, rather
than violates, separation of powers. It ensures the fulfillment of the
legislative policy and serves as a check to any over-accumulation
of power on the part of the executive and the implementing
agencies.
After a careful consideration of the conflicting contentions of the
parties, the Court finds that petitioners have failed to overcome
the presumption of constitutionality in favor of RA 9335, except as
shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial
adjudication.10 A closely related requirement is ripeness, that is,
the question must be ripe for adjudication. And a constitutional
question is ripe for adjudication when the governmental act being
challenged has a direct adverse effect on the individual challenging
it.11Thus, to be ripe for judicial adjudication, the petitioner must
show a personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision of the
Court.12
In this case, aside from the general claim that the dispute has
ripened into a judicial controversy by the mere enactment of the
law even without any further overt act,13 petitioners fail either to
assert any specific and concrete legal claim or to demonstrate any
direct adverse effect of the law on them. They are unable to show
a personal stake in the outcome of this case or an injury to
themselves. On this account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of
their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the
legislative branch is alleged to have infringed the Constitution, it

becomes not only the right but in fact the duty of the judiciary to
settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism, and justice, and lead
modest lives.
Public office is a public trust. It must be discharged by its holder
not for his own personal gain but for the benefit of the public for
whom he holds it in trust. By demanding accountability and service
with responsibility, integrity, loyalty, efficiency, patriotism and
justice, all government officials and employees have the duty to be
responsive to the needs of the people they are called upon to
serve.
Public officers enjoy the presumption of regularity in the
performance of their duties. This presumption necessarily obtains
in favor of BIR and BOC officials and employees. RA 9335 operates
on the basis thereof and reinforces it by providing a system of
rewards and sanctions for the purpose of encouraging the officials
and employees of the BIR and the BOC to exceed their revenue
targets and optimize their revenue-generation capability and
collection.15
The presumption is disputable but proof to the contrary is required
to rebut it. It cannot be overturned by mere conjecture or denied in
advance (as petitioners would have the Court do) specially in this
case where it is an underlying principle to advance a declared
public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR
and BOC officials and employees into "bounty hunters and
mercenaries" is not only without any factual and legal basis; it is
also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear
and unequivocal breach of the Constitution, not a doubtful and
equivocal one.16 To invalidate RA 9335 based on petitioners
baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved
it.
Public service is its own reward. Nevertheless, public officers may
by law be rewarded for exemplary and exceptional performance. A
system of incentives for exceeding the set expectations of a public

209
office is not anathema to the concept of public accountability. In
fact, it recognizes and reinforces dedication to duty, industry,
efficiency and loyalty to public service of deserving government
personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a
law which awards to officers of the customs as well as other parties
an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling.
Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is
to stimulate and reward their zeal and industry in detecting
fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be
entitled to a reward when, as a consequence of their zeal in the
enforcement of tax and customs laws, they exceed their revenue
targets. In addition, RA 9335 establishes safeguards to ensure that
the reward will not be claimed if it will be either the fruit of "bounty
hunting or mercenary activity" or the product of the irregular
performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of
the BIR and the BOC. The officials, examiners, and
employees of the [BIR] and the [BOC] who violate this Act
or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties
shall be held liable for any loss or injury suffered by any
business establishment or taxpayer as a result of such
violation, negligence, abuse, malfeasance, misfeasance or
failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality
under the same conditions and among persons similarly situated; it
is equality among equals, not similarity of treatment of persons
who are classified based on substantial differences in relation to
the object to be accomplished.19When things or persons are
different in fact or circumstance, they may be treated in law
differently. InVictoriano v. Elizalde Rope Workers Union,20 this
Court declared:
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be

affected alike by a statute. Equality of operation of statutes

does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things
which are different in fact be treated in law as
though they were the same. The equal protection
clause does not forbid discrimination as to things
that are different. It does not prohibit legislation
which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of classification
is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means
that the classification should be based on
substantial distinctions which make for real
differences, that it must be germane to the purpose
of the law; that it must not be limited to existing
conditions only; and that it must apply equally to
each member of the class. This Court has held that the
standard is satisfied if the classification or
distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the
purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide
range of discretion. It is not necessary that the
classification be based on scientific or marked differences
of things or in their relation. Neither is it necessary that the
classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest
on narrow distinctions, for the equal protection guaranty
does not preclude the legislature from recognizing degrees
of evil or harm, and legislation is addressed to evils as they
may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that
is, a classification that has a reasonable foundation or rational

210
basis and not arbitrary.22 With respect to RA 9335, its expressed
public policy is the optimization of the revenue-generation
capability and collection of the BIR and the BOC.23 Since the
subject of the law is the revenue- generation capability and
collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because they
have the common distinct primary function of generating revenues
for the national government through the collection of taxes,
customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of
Internal Revenue, which shall be headed by and subject to
the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the
recommendation of the Secretary [of the DOF], shall have
the following functions:
(1) Assess and collect all taxes, fees and charges
and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent
and subordinate units; and
(5) Perform such other functions as may be provided by
law.24
xxx
xxx
xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. The Bureau of Customs
which shall be headed and subject to the management and
control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of
the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the
corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff
and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;

(5) Supervise and control exports, imports, foreign mails

and the clearance of vessels and aircrafts in all ports of
entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal
activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent
units;
(9) Perform such other functions as may be provided by
law.25
xxx
xxx
xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They
principally perform the special function of being the
instrumentalities through which the State exercises one of its great
inherent functions taxation. Indubitably, such substantial
distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR
and the BOC under RA 9335 fully satisfy the demands of equal
protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power:
(1) the completeness test and (2) the sufficient standard test. A
law is complete when it sets forth therein the policy to be
executed, carried out or implemented by the delegate.26 It lays
down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegates
authority and prevent the delegation from running riot.27 To be
sufficient, the standard must specify the limits of the delegates
authority, announce the legislative policy and identify the
conditions under which it is to be implemented. 28
RA 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies
in carrying out the provisions of the law. Section 2 spells out the
policy of the law:
SEC. 2. Declaration of Policy. It is the policy of the State
to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC) by providing for a system of
rewards and sanctions through the creation of a Rewards
and Incentives Fund and a Revenue Performance
Evaluation Board in the above agencies for the purpose of
encouraging their officials and employees to exceed their
revenue targets.

211
Section 4 "canalized within banks that keep it from
collection falls short of the target by at least seven
overflowing"29 the delegated power to the President to fix revenue
and a half percent (7.5%), with due consideration of
targets:
all relevant factors affecting the level of
SEC. 4. Rewards and Incentives Fund. A Rewards and
collection as provided in the rules and regulations
Incentives Fund, hereinafter referred to as the Fund, is
promulgated under this Act, subject to civil service
hereby created, to be sourced from the collection of the
laws, rules and regulations and compliance with
BIR and the BOC in excess of their respective revenue
substantive and procedural due process: Provided,
targets of the year, as determined by the
That the following exemptions shall apply:
Development Budget and Coordinating Committee
1. Where the district or area of responsibility is
(DBCC), in the following percentages:
newly-created, not exceeding two years in
operation, as has no historical record of collection
Excess of Collection of the
Percent (%) of the Excess Collection to
performance that can be used as basis for
Excess the Revenue Targets
Accrue to the Fund
evaluation; and
30% or below
15%
2. Where the revenue or customs official or
More than 30%
15% of the first 30% plus 20% of the
employee is a recent transferee in the middle of
remaining excess
the period under consideration unless the transfer
The Fund shall be deemed automatically appropriated the
was due to nonperformance of revenue targets or
year immediately following the year when the revenue
potential nonperformance of revenue targets:
collection target was exceeded and shall be released on
Provided, however, That when the district or area
the same fiscal year.
of responsibility covered by revenue or customs
Revenue targets shall refer to the original estimated
officials or employees has suffered from economic
revenue collection expected of the BIR and the BOC
difficulties brought about by natural calamities
for a given fiscal year as stated in the Budget of
orforce majeure or economic causes as may be
Expenditures and Sources of Financing (BESF)
determined by the Board, termination shall be
submitted by the President to Congress. The BIR and
considered only after careful and proper review by
the BOC shall submit to the DBCC the distribution of the
the Board.
agencies revenue targets as allocated among its revenue
(c)
To
terminate
personnel in accordance with the criteria
districts in the case of the BIR, and the collection districts
adopted
in
the
preceding
paragraph: Provided, That such
in the case of the BOC.
decision
shall
be
immediately
executory: Provided, further,
xxx
xxx
xxx (emphasis supplied)
That
the
application
of
the
criteria
for the separation
Revenue targets are based on the original estimated revenue
of an official or employee from service under this
collection expected respectively of the BIR and the BOC for a given
Act shall be without prejudice to the application of
fiscal year as approved by the DBCC and stated in the BESF
other relevant laws on accountability of public
30
submitted by the President to Congress. Thus, the determination
officers and employees, such as the Code of Conduct
of revenue targets does not rest solely on the President as it also
and Ethical Standards of Public Officers and
undergoes the scrutiny of the DBCC.
Employees and the Anti-Graft and Corrupt Practices
On the other hand, Section 7 specifies the limits of the Boards
Act;
authority and identifies the conditions under which officials and
xxx
xxx
xxx (emphasis supplied)
employees whose revenue collection falls short of the target by at
Clearly, RA 9335 in no way violates the security of tenure of
least 7.5% may be removed from the service:
officials and employees of the BIR and the BOC. The guarantee of
SEC. 7. Powers and Functions of the Board. The Board in
security of tenure only means that an employee cannot be
the agency shall have the following powers and functions:
dismissed from the service for causes other than those provided by
xxx
xxx
xxx
law and only after due process is accorded the employee. 31 In the
(b) To set the criteria and procedures for removing from
case of RA 9335, it lays down a reasonable yardstick for removal
service officials and employees whose revenue

212
(when the revenue collection falls short of the target by at least
7.5%) with due consideration of all relevant factors affecting the
level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for
disciplinary action under civil service laws.32 The action for removal
is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient
standards: "public interest," "justice and equity," "public
convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the
BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There
is hereby created a Joint Congressional Oversight
Committee composed of seven Members from the Senate
and seven Members from the House of Representatives.
The Members from the Senate shall be appointed by the
Senate President, with at least two senators representing
the minority. The Members from the House of
Representatives shall be appointed by the Speaker with at
least two members representing the minority. After the
Oversight Committee will have approved the implementing
rules and regulations (IRR) it shall thereafter
become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was
created for the purpose of approving the implementing rules and
regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and
CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its
alleged encroachment on the executive function of implementing
and enforcing the law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the
Court to confront the issue of the constitutionality of the Joint
Congressional Oversight Committee created under RA 9335 (or
other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on
the concept of congressional oversight in Macalintal v. Commission
on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all
activities undertaken by Congress to enhance its

understanding of and influence over

the implementation of legislation it has enacted.
Clearly, oversight concerns postenactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program
objectives, (b) to determine whether agencies are
properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive
usurpation of legislative authority, and (d) to assess
executive conformity with the congressional
perception of public interest.
The power of oversight has been held to be intrinsic in the
grant of legislative power itself and integral to the checks
and balances inherent in a democratic system of
government. x x x x x x x x x
Over the years, Congress has invoked its oversight power
with increased frequency to check the perceived
"exponential accumulation of power" by the executive
branch. By the beginning of the 20th century, Congress has
delegated an enormous amount of legislative authority to
the executive branch and the administrative agencies.
Congress, thus, uses its oversight power to make sure that
the administrative agencies perform their functions within
the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of
its oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity
and continuity of attention to administrative
operations. Its primary purpose is to determine
economy and efficiency of the operation of
government activities. In the exercise of legislative
scrutiny, Congress may request information and
report from the other branches of government. It
can give recommendations or pass resolutions for
consideration of the agency involved.
xxx
xxx
xxx
b. Congressional investigation
While congressional scrutiny is regarded as a
passive process of looking at the facts that are
readily available, congressional investigation
involves a more intense digging of facts. The power

213
of Congress to conduct investigation is recognized
by the 1987 Constitution under section 21, Article
VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress
exercises its oversight power is thru legislative supervision.
"Supervision" connotes a continuing and informed
awareness on the part of a congressional committee
regarding executive operations in a given administrative
area. While both congressional scrutiny and investigation
involve inquiry into past executive branch actions in order
to influence future executive branch
performance, congressional supervision allows Congress to
scrutinize the exercise of delegated law-making authority,
and permits Congress to retain part of that delegated
authority.
Congress exercises supervision over the executive
agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive
agency the power to promulgate regulations with the force
of law. These provisions require the President or an agency
to present the proposed regulations to Congress, which
retains a "right" to approve or disapprove any regulation
before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a
law after the expiration of a certain period of time, only if
Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute
provides that a proposed regulation will become law if
Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to
maintain the balance of power between the legislative and
the executive branches of government as it offers
lawmakers a way to delegate vast power to the executive
branch or to independent agencies while retaining the
option to cancel particular exercise of such power without
having to pass new legislation or to repeal existing law.
They contend that this arrangement promotes democratic
accountability as it provides legislative check on the
activities of unelected administrative agencies. One
proponent thus explains:
It is too late to debate the merits of this delegation
policy: the policy is too deeply embedded in our
law and practice. It suffices to say that the

complexities of modern government have often led

Congress-whether by actual or perceived
necessity- to legislate by declaring broad policy
goals and general statutory standards, leaving the
choice of policy options to the discretion of an
executive officer. Congress articulates legislative
aims, but leaves their implementation to the
judgment of parties who may or may not have
participated in or agreed with the development of
those aims. Consequently, absent safeguards, in
many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the
Executive disposes. One safeguard, of course, is
the legislative power to enact new legislation or to
change existing law. But without some means of
overseeing post enactment activities of the
executive branch, Congress would be unable to
determine whether its policies have been
implemented in accordance with legislative intent
and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative
veto as undue encroachment upon the executive
prerogatives. They urge that any post-enactment
measures undertaken by the legislative branch
should be limited to scrutiny and investigation; any
measure beyond that would undermine the
separation of powers guaranteed by the
Constitution. They contend that legislative veto
constitutes an impermissible evasion of the Presidents
veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents
counter that legislative veto enhances separation of
powers as it prevents the executive branch and
independent agencies from accumulating too much power.
They submit that reporting requirements and congressional
committee investigations allow Congress to scrutinize only
the exercise of delegated law-making authority. They do
not allow Congress to review executive proposals before
they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In
contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of
"subordinate law" or those enacted by the executive

214
branch pursuant to a delegation of authority by Congress.
They further argue that legislative veto "is a necessary
response by Congress to the accretion of policy control by
forces outside its chambers." In an era of delegated
authority, they point out that legislative veto "is the most
efficient means Congress has yet devised to retain control
over the evolution and implementation of its policy as
declared by statute."
In Immigration and Naturalization Service v. Chadha, the
U.S. Supreme Court resolved the validity of
legislative veto provisions. The case arose from the
order of the immigration judge suspending the deportation
of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of
Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either
House of Congress, by resolution, to invalidate the decision
of the executive branch to allow a particular deportable
alien to remain in the United States. The immigration judge
reopened the deportation proceedings to implement the
House order and the alien was ordered deported. The
Board of Immigration Appeals dismissed the aliens appeal,
holding that it had no power to declare unconstitutional an
act of Congress. The United States Court of Appeals for
Ninth Circuit held that the House was without constitutional
authority to order the aliens deportation and that 244(c)
(2) violated the constitutional doctrine on separation of
powers.
On appeal, the U.S. Supreme Court declared 244(c)(2)
unconstitutional. But the Court shied away from the
issue of separation of powers and instead held that the
provision violates the presentment clause and
bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural
Gas Policy Act of 1978 and the Federal Trade Commission
Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto
provisions although some of these provisions required the

approval of both Houses of Congress and thus met the

bicameralism requirement of Article I. Indeed, some of
these veto provisions were not even exercised.35(emphasis
supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of
a constitutional body like the Commission on Elections, the Court
struck down the provision in RA 9189 (The Overseas Absentee
Voting Act of 2003) creating a Joint Congressional Committee. The
committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend
and approve the IRR promulgated by the Commission on Elections.
The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes
an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic
system of government. It may in fact even enhance the separation
of powers as it prevents the over-accumulation of power in the
executive branch.
However, to forestall the danger of congressional encroachment
"beyond the legislative sphere," the Constitution imposes two basic
and related constraints on Congress.37 It may not vest itself, any of
its committees or its members with either executive or judicial
power.38 And, when it exercises its legislative power, it must follow
the "single, finely wrought and exhaustively considered,
procedures" specified under the Constitution,39 including the
procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this
should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments
to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power
of confirmation40 and
(2) investigation and monitoring41 of the implementation of
laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.42

215
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. Legislative vetoes fall in
this class.
Legislative veto is a statutory provision requiring the President or
an administrative agency to present the proposed implementing
rules and regulations of a law to Congress which, by itself or
through a committee formed by it, retains a "right" or "power" to
approve or disapprove such regulations before they take effect. As
such, a legislative veto in the form of a congressional oversight
committee is in the form of an inward-turning delegation designed
to attach a congressional leash (other than through scrutiny and
investigation) to an agency to which Congress has by law initially
delegated broad powers.43 It radically changes the design or
structure of the Constitutions diagram of power as it entrusts to
Congress a direct role in enforcing, applying or implementing its
own laws.44
Congress has two options when enacting legislation to define
national policy within the broad horizons of its legislative
competence.45 It can itself formulate the details or it can assign to
the executive branch the responsibility for making necessary
managerial decisions in conformity with those standards. 46 In the
latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. 47 Thus, what
is left for the executive branch or the concerned administrative
agency when it formulates rules and regulations implementing the
law is to fill up details (supplementary rule-making) or ascertain
facts necessary to bring the law into actual operation (contingent
rule-making).48
Administrative regulations enacted by administrative agencies to
implement and interpret the law which they are entrusted to
enforce have the force of law and are entitled to respect. 49 Such
rules and regulations partake of the nature of a statute 50 and are
just as binding as if they have been written in the statute itself. As
such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent
court.51 Congress, in the guise of assuming the role of an overseer,
may not pass upon their legality by subjecting them to its stamp of
approval without disturbing the calculated balance of powers
established by the Constitution. In exercising discretion to approve
or disapprove the IRR based on a determination of whether or not
they conformed with the provisions of RA 9335, Congress arrogated
judicial power unto itself, a power exclusively vested in this Court
by the Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be
subjected to approval by Congress as a condition for their
effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative
and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and
repeal laws)53 is vested in Congress which consists of two
chambers, the Senate and the House of Representatives. A valid
exercise of legislative power requires the act of both chambers.
Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus,
assuming the validity of a legislative veto, both a single-chamber
legislative veto and a congressional committee legislative veto are
invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress
shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it,
otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all
the Members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other
House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each
House shall be determined by yeas or nays, and the names
of the members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any
bill to the House where it originated within thirty days after
the date of receipt thereof; otherwise, it shall become a law
as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President
for approval or veto. In the absence of presentment to the
President, no bill passed by Congress can become a law. In this
sense, law-making under the Constitution is a joint act of the

216
Legislature and of the Executive. Assuming that legislative veto is a
valid legislative act with the force of law, it cannot take effect
without such presentment even if approved by both chambers of
Congress.
In sum, two steps are required before a bill becomes a law. First, it
must be approved by both Houses of Congress.54 Second, it must
be presented to and approved by the President.55 As summarized
by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the
following is the procedure for the approval of bills:
A bill is introduced by any member of the House of
Representatives or the Senate except for some measures
that must originate only in the former chamber.
The first reading involves only a reading of the number and
title of the measure and its referral by the Senate President
or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be
recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If
there are other bills of the same nature or purpose, they
may all be consolidated into one bill under common
authorship or as a committee bill.
Once reported out, the bill shall be calendared for second
reading. It is at this stage that the bill is read in its entirety,
scrutinized, debated upon and amended when desired. The
second reading is the most important stage in the passage
of a bill.
The bill as approved on second reading is printed in its final
form and copies thereof are distributed at least three days
before the third reading. On the third reading, the
members merely register their votes and explain them if
they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other
chamber, where it will also undergo the three readings. If
there are differences between the versions approved by
the two chambers, a conference committee58 representing
both Houses will draft a compromise measure that if
ratified by the Senate and the House of Representatives
will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the
Congress, thereafter authenticated with the signatures of
the Senate President, the Speaker, and the Secretaries of
their respective chambers59
The Presidents role in law-making.

The final step is submission to the President for approval.

Once approved, it takes effect as law after the required
publication.60
Where Congress delegates the formulation of rules to implement
the law it has enacted pursuant to sufficient standards established
in the said law, the law must be complete in all its essential terms
and conditions when it leaves the hands of the legislature. And it
may be deemed to have left the hands of the legislature when it
becomes effective because it is only upon effectivity of the statute
that legal rights and obligations become available to those entitled
by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause, 61 the
determination as to when a law takes effect is wholly the
prerogative of Congress.62 As such, it is only upon its effectivity
that a law may be executed and the executive branch acquires the
duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited
to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law
that empowers Congress or any of its members to play any role in
the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional. Under this
principle, a provision that requires Congress or its members to
approve the implementing rules of a law after it has already taken
effect shall be unconstitutional, as is a provision that allows
Congress or its members to overturn any directive or ruling made
by the members of the executive branch charged with the
implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck
down as unconstitutional. While there may be similar provisions of
other laws that may be invalidated for failure to pass this standard,
the Court refrains from invalidating them wholesale but will do so
at the proper time when an appropriate case assailing those
provisions is brought before us.64
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other provisions
of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. If any provision of this Act is
declared invalid by a competent court, the remainder of
this Act or any provision not affected by such declaration of
invalidity shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid
down the following rules:

217
The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid,
the valid portion, if separable from the invalid, may stand
and be enforced. The presence of a separability clause in a
statute creates the presumption that the legislature
intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so
far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself
if it had supposed that it could not constitutionally enact
the other. Enough must remain to make a complete,
intelligible and valid statute, which carries out the
legislative intent. x x x
The exception to the general rule is that when the parts of
a statute are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations
for each other, as to warrant a belief that the legislature
intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent,
conditional, or connected with one another, the legislature
intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case
if some parts are unconstitutional, all the other provisions
thus dependent, conditional, or connected must fall with
them.
The separability clause of RA 9335 reveals the intention of the
legislature to isolate and detach any invalid provision from the
other provisions so that the latter may continue in force and effect.
The valid portions can stand independently of the invalid section.
Without Section 12, the remaining provisions still constitute a
complete, intelligible and valid law which carries out the legislative
intent to optimize the revenue-generation capability and collection
of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.
To be effective, administrative rules and regulations must be
published in full if their purpose is to enforce or implement existing
law pursuant to a valid delegation. The IRR of RA 9335 were
published on May 30, 2006 in two newspapers of general
circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and
effective even without the approval of the Joint Congressional
Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY

GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and
regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA
9335, the rest of the provisions remain in force and effect.
SO ORDERED.

218
G.R. No. 191424
August 7, 2013
ALFEO D. VIVAS, ON HIS BEHALF AND ON BEHALF OF THE
SHAREHOLDERS OF EUROCREDIT COMMUNITY
BANK, PETITIONER,
vs.
THE MONETARY BOARD OF THE BANGKO SENTRAL NG
PILIPINAS AND THE PHILIPPINE DEPOSIT INSURANCE
CORPORATION, RESPONDENTS.
DECISION
MENDOZA, J.:
This is a petition for prohibition with prayer for the issuance of a
status quo ante order or writ of preliminary injunction ordering the
respondents to desist from closing EuroCredit Community Bank,
Incorporated (ECBI) and from pursuing the receivership thereof.
The petition likewise prays that the management and operation of
ECBI be restored to its Board of Directors (BOD) and its officers.
The Facts
The Rural Bank of Faire, Incorporated (RBFI) was a duly registered
rural banking institution with principal office in Centro Sur, Sto.
Nio, Cagayan. Record shows that the corporate life of RBFI
expired on May 31, 2005.1Notwithstanding, petitioner Alfeo D.
Vivas (Vivas) and his principals acquired the controlling interest in
RBFI sometime in January 2006. At the initiative of Vivas and the
new management team, an internal audit was conducted on RBFI
and results thereof highlighted the dismal operation of the rural
bank. In view of those findings, certain measures calculated to
revitalize the bank were allegedly introduced.2 On December 8,
2006, the Bangko Sentral ng Pilipinas (BSP) issued the Certificate
of Authority extending the corporate life of RBFI for another fifty
(50) years. The BSP also approved the change of its corporate
name to EuroCredit Community Bank, Incorporated, as well as the
increase in the number of the members of its BOD, from five (5) to
eleven (11).3
Pursuant to Section 28 of Republic Act (R.A.) No. 7653, otherwise
known as The New Central Bank Act, the Integrated Supervision
Department II (ISD II) of the BSP conducted a general examination
on ECBI with the cut-off date of December 31, 2007. Shortly after
the completion of the general examination, an exit conference was
held on March 27, 2008 at the BSP during which the BSP officials
and examiners apprised Vivas, the Chairman and President of ECBI,
as well as the other bank officers and members of its BOD, of the
advance findings noted during the said examination. The ECBI
submitted its comments on BSPs consolidated findings and risk
asset classification through a letter, dated April 8, 2008. 4

Sometime in April 2008, the examiners from the Department of

Loans and Credit of the BSP arrived at the ECBI and cancelled the
rediscounting line of the bank. Vivas appealed the cancellation to
BSP.5 Thereafter, the Monetary Board (MB) issued Resolution No.
1255, dated September 25, 2008, placing ECBI under Prompt
Corrective Action (PCA) framework because of the following serious
findings and supervisory concerns noted during the general
examination: 1] negative capital of ?14.674 million and capital
adequacy ratio of negative 18.42%; 2] CAMEL (Capital Asset
Management Earnings Liquidity) composite rating of "2" with a
Management component rating of "1"; and 3] serious supervisory
concerns particularly on activities deemed unsafe or
unsound.6 Vivas claimed that the BSP took the above courses of
action due to the joint influence exerted by a certain hostile
shareholder and a former BSP examiner.7
Through its letter, dated September 30, 2008, the BSP furnished
ECBI with a copy of the Report of Examination (ROE) as of
December 31, 2007. In addition, the BSP directed the banks BOD
and senior management to: 1] infuse fresh capital of ?22.643
million; 2] book the amount of ?28.563 million representing
unbooked valuation reserves on classified loans and other risks
assets on or before October 31, 2008; and 3] take appropriate
action necessary to address the violations/exceptions noted in the
examination.8
Vivas moved for a reconsideration of Resolution No. 1255 on the
grounds of non-observance of due process and arbitrariness. The
ISD II, on several instances, had invited the BOD of ECBI to discuss
matters pertaining to the placement of the bank under PCA
framework and other supervisory concerns before making the
appropriate recommendations to the MB. The proposed meeting,
however, did not materialize due to postponements sought by
Vivas.9
In its letter, dated February 20, 2009, the BSP directed ECBI to
explain why it transferred the majority shares of RBFI without
securing the prior approval of the MB in apparent violation of
Subsection X126.2 of the Manual of Regulation for Banks
(MORB).10 Still in another letter,11 dated March 31, 2009, the ISD II
required ECBI to explain why it did not obtain the prior approval of
the BSP anent the establishment and operation of the banks suboffices.
Also, the scheduled March 31, 2009 general examination of the
books, records and general condition of ECBI with the cut-off date
of December 31, 2008, did not push through. According to Vivas,
ECBI asked for the deferment of the examination pending

219
resolution of its appeal before the MB. Vivas believed that he was
being treated unfairly because the letter of authority to examine
allegedly contained a clause which pertained to the Anti-Money
Laundering Law and the Bank Secrecy Act. 12
The MB, on the other hand, posited that ECBI unjustly refused to
allow the BSP examiners from examining and inspecting its books
and records, in violation of Sections 25 and 34 of R.A. No. 7653. In
its letter,13 dated May 8, 2009, the BSP informed ECBI that it was
already due for another annual examination and that the pendency
of its appeal before the MB would not prevent the BSP from
conducting another one as mandated by Section 28 of R.A. No.
7653.
In view of ECBIs refusal to comply with the required examination,
the MB issued Resolution No. 726,14 dated May 14, 2009, imposing
monetary penalty/fine on ECBI, and referred the matter to the
Office of the Special Investigation (OSI) for the filing of appropriate
legal action. The BSP also wrote a letter,15 dated May 26, 2009,
advising ECBI to comply with MB Resolution No. 771, which
essentially required the bank to follow its directives. On May 28,
2009, the ISD II reiterated its demand upon the ECBI BOD to allow
the BSP examiners to conduct a general examination on June 3,
2009.16
In its June 2, 2009 Letter-Reply,17 ECBI asked for another deferment
of the examination due to the pendency of certain unresolved
issues subject of its appeal before the MB, and because Vivas was
then out of the country. The ISD II denied ECBIs request and
ordered the general examination to proceed as previously
scheduled.18
Thereafter, the MB issued Resolution No. 823,19 dated June 4, 2009,
approving the issuance of a cease and desist order against ECBI,
which enjoined it from pursuing certain acts and transactions that
were considered unsafe or unsound banking practices, and from
doing such other acts or transactions constituting fraud or might
result in the dissipation of its assets.
On June 10, 2009, the OSI filed with the Department of Justice
(DOJ) a complaint for Estafa Through Falsification of Commercial
Documents against certain officials and employees of ECBI.
Meanwhile, the MB issued Resolution No. 1164, 20 dated August 13,
2009, denying the appeal of ECBI from Resolution No. 1255 which
placed it under PCA framework. On November 18, 2009, the
general examination of the books and records of ECBI with the cutoff date of September 30, 2009, was commenced and ended in
December 2009. Later, the BSP officials and examiners met with
the representatives of ECBI, including Vivas, and discussed their

findings.21 On December 7, 2009, the ISD II reminded ECBI of the

non-submission of its financial audit reports for the years 2007 and
2008 with a warning that failure to submit those reports and the
written explanation for such omission shall result in the imposition
of a monetary penalty.22 In a letter, dated February 1, 2010, the ISD
II informed ECBI of MB Resolution No. 1548 which denied its
request for reconsideration of Resolution No. 726.
On March 4, 2010, the MB issued Resolution No. 27623 placing ECBI
under receivership in accordance with the recommendation of the
ISD II which reads:
On the basis of the examination findings as of 30 September 2009
as reported by the Integrated Supervision Department (ISD) II, in
its memorandum dated 17 February 2010, which findings showed
that the Eurocredit Community Bank, Inc. a Rural Bank
(Eurocredit Bank) (a) is unable to pay its liabilities as they become
due in the ordinary course of business; (b) has insufficient
realizable assets to meet liabilities; (c) cannot continue in business
without involving probable losses to its depositors and creditors;
and (d) has willfully violated a cease and desist order of the
Monetary Board for acts or transactions which are considered
unsafe and unsound banking practices and other acts or
transactions constituting fraud or dissipation of the assets of the
institution, and considering the failure of the Board of
Directors/management of Eurocredit Bank to restore the banks
financial health and viability despite considerable time given to
address the banks financial problems, and that the bank had been
accorded due process, the Board, in accordance with Section 30 of
Republic Act No. 7653 (The New Central Bank Act), approved the
recommendation of ISD II as follows:
To prohibit the Eurocredit Bank from doing business in the
Philippines and to place its assets and affairs under receivership;
and
To designate the Philippine Deposit Insurance Corporation as
Receiver of the bank.
Assailing MB Resolution No. 276, Vivas filed this petition for
prohibition before this Court, ascribing grave abuse of discretion to
the MB for prohibiting ECBI from continuing its banking business
and for placing it under receivership. The petitioner presents the
following
ARGUMENTS:
(a)
It is grave abuse of discretion amounting to loss of jurisdiction to
apply the general law embodied in Section 30 of the New Central

220
Bank Act as opposed to the specific law embodied in Sections 11
and 14 of the Rural Banks Act of 1992.
(b)
Even if it assumed that Section 30 of the New Central Bank Act is
applicable, it is still the gravest abuse of discretion amounting to
lack or excess of jurisdiction to execute the law with manifest
arbitrariness, abuse of discretion, and bad faith, violation of
constitutional rights and to further execute a mandate well in
excess of its parameters.
(c)
The power delegated in favor of the Bangko Sentral ng Pilipinas to
place rural banks under receiverships is unconstitutional for being
a diminution or invasion of the powers of the Supreme Court, in
violation of Section 2, Article VIII of the Philippine Constitution. 24
Vivas submits that the respondents committed grave abuse of
discretion when they erroneously applied Section 30 of R.A. No.
7653, instead of Sections 11 and 14 of the Rural Bank Act of 1992
or R.A. No. 7353. He argues that despite the deficiencies,
inadequacies and oversights in the conduct of the affairs of ECBI, it
has not committed any financial fraud and, hence, its placement
under receivership was unwarranted and improper. He posits that,
instead, the BSP should have taken over the management of ECBI
and extended loans to the financially distrained bank pursuant to
Sections 11 and 14 of R.A. No. 7353 because the BSPs power is
limited only to supervision and management take-over of banks.
He contends that the implementation of the questioned resolution
was tainted with arbitrariness and bad faith, stressing that ECBI
was placed under receivership without due and prior hearing in
violation of his and the banks right to due process. He adds that
respondent PDIC actually closed ECBI even in the absence of any
directive to this effect. Lastly, Vivas assails the constitutionality of
Section 30 of R.A. No. 7653 claiming that said provision vested
upon the BSP the unbridled power to close and place under
receivership a hapless rural bank instead of aiding its financial
needs. He is of the view that such power goes way beyond its
constitutional limitation and has transformed the BSP to a
sovereign in its own "kingdom of banks."25
The Courts Ruling
The petition must fail.
Vivas Availed of the Wrong Remedy
To begin with, Vivas availed of the wrong remedy. The MB issued
Resolution No. 276, dated March 4, 2010, in the exercise of its
power under R.A. No. 7653. Under Section 30 thereof, any act of
the MB placing a bank under conservatorship, receivership or

liquidation may not be restrained or set aside except on a petition

for certiorari. Pertinent portions of R.A. 7653 read:
Section 30.
x x x x.
The actions of the Monetary Board taken under this section or
under Section 29 of this Act shall be final and executory, and may
not be restrained or set aside by the court except on petition for
certiorari on the ground that the action taken was in excess of
jurisdiction or with such grave abuse of discretion as to amount to
lack or excess of jurisdiction. The petition for certiorari may only be
filed by the stockholders of record representing the majority of the
capital stock within ten (10) days from receipt by the board of
directors of the institution of the order directing receivership,
liquidation or conservatorship.
x x x x. [Emphases supplied]
Prohibition is already unavailing
Granting that a petition for prohibition is allowed, it is already an
ineffective remedy under the circumstances obtaining. Prohibition
or a "writ of prohibition" is that process by which a superior court
prevents inferior courts, tribunals, officers, or persons from
usurping or exercising a jurisdiction with which they have not been
vested by law, and confines them to the exercise of those powers
legally conferred. Its office is to restrain subordinate courts,
tribunals or persons from exercising jurisdiction over matters not
within its cognizance or exceeding its jurisdiction in matters of
which it has cognizance.26 In our jurisdiction, the rule on prohibition
is enshrined in Section 2, Rule 65 of the Rules on Civil Procedure, to
wit:
Sec. 2. Petition for prohibition - When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and
praying that the judgment be rendered commanding the
respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental
reliefs as the law and justice require.
x x x x.
Indeed, prohibition is a preventive remedy seeking that a judgment
be rendered which would direct the defendant to desist from
continuing with the commission of an act perceived to be

221
illegal.27 As a rule, the proper function of a writ of prohibition is to
prevent the doing of an act which is about to be done. It is not
intended to provide a remedy for acts already accomplished. 28
Though couched in imprecise terms, this petition for prohibition
apparently seeks to prevent the acts of closing of ECBI and placing
it under receivership. Resolution No. 276, however, had already
been issued by the MB and the closure of ECBI and its placement
under receivership by the PDIC were already accomplished.
Apparently, the remedy of prohibition is no longer appropriate.
Settled is the rule that prohibition does not lie to restrain an act
that is already a fait accompli.29
The Petition Should Have Been Filed in the CA
Even if treated as a petition for certiorari, the petition should have
been filed with the CA. Section 4 of Rule 65 reads:
Section 4. When and where petition filed. The petition shall be
filed not later than sixty (60) days from notice of the judgment,
order or resolution. In case a motion for reconsideration or new
trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of
said motion.
The petition shall be filed in the Supreme Court or, if it relates to
the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in
aid of its appellate jurisdiction, or in the Sandiganbayan if it is in
aid of its appellate jurisdiction. If it involves the acts or omissions
of a quasi-judicial agency, unless otherwise provided by law or
these Rules, the petition shall be filed in and cognizable only by the
Court of Appeals. [Emphases supplied]
That the MB is a quasi-judicial agency was already settled and
reiterated in the case of Bank of Commerce v. Planters
Development Bank And Bangko Sentral Ng Pilipinas.30
Doctrine of Hierarchy of Courts
Even in the absence of such provision, the petition is also
dismissible because it simply ignored the doctrine of hierarchy of
courts. True, the Court, the CA and the RTC have original
concurrent jurisdiction to issue writs of certiorari, prohibition and
mandamus. The concurrence of jurisdiction, however, does not
grant the party seeking any of the extraordinary writs the absolute
freedom to file a petition in any court of his choice. The petitioner
has not advanced any special or important reason which would
allow a direct resort to this Court. Under the Rules of Court, a party
may directly appeal to this Court only on pure questions of law. 31 In

the case at bench, there are certainly factual issues as Vivas is

questioning the findings of the investigating team.
Strict observance of the policy of judicial hierarchy demands that
where the issuance of the extraordinary writs is also within the
competence of the CA or the RTC, the special action for the
obtainment of such writ must be presented to either court. As a
rule, the Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate lower courts;
or where exceptional and compelling circumstances, such as cases
of national interest and with serious implications, justify the
availment of the extraordinary remedy of writ of certiorari,
prohibition, or mandamus calling for the exercise of its primary
jurisdiction.32 The judicial policy must be observed to prevent an
imposition on the precious time and attention of the Court.
The MB Committed No Grave Abuse of Discretion
In any event, no grave abuse of discretion can be attributed to the
MB for the issuance of the assailed Resolution No. 276.
Vivas insists that the circumstances of the case warrant the
application of Section 11 of R.A. No. 7353, which provides:
Sec. 11. The power to supervise the operation of any rural bank by
the Monetary Board as herein indicated shall consist in placing
limits to the maximum credit allowed to any individual borrower; in
prescribing the interest rate, in determining the loan period and
loan procedures, in indicating the manner in which technical
assistance shall be extended to rural banks, in imposing a uniform
accounting system and manner of keeping the accounts and
records of rural banks; in instituting periodic surveys of loan and
lending procedures, audits, test-check of cash and other
transactions of the rural banks; in conducting training courses for
personnel of rural banks; and, in general, in supervising the
business operations of the rural banks.
The Central Bank shall have the power to enforce the laws, orders,
instructions, rules and regulations promulgated by the Monetary
Board, applicable to rural banks; to require rural banks, their
directors, officers and agents to conduct and manage the affairs of
the rural banks in a lawful and orderly manner; and, upon proof
that the rural bank or its Board of Directors, or officers are
conducting and managing the affairs of the bank in a manner
contrary to laws, orders, instructions, rules and regulations
promulgated by the Monetary Board or in a manner substantially
prejudicial to the interest of the Government, depositors or
creditors, to take over the management of such bank when
specifically authorized to do so by the Monetary Board after due
hearing process until a new board of directors and officers are

222
elected and qualified without prejudice to the prosecution of the
persons responsible for such violations under the provisions of
Sections 32, 33 and 34 of Republic Act No. 265, as amended.
x x x x.
The thrust of Vivas argument is that ECBI did not commit any
financial fraud and, hence, its placement under receivership was
unwarranted and improper. He asserts that, instead, the BSP
should have taken over the management of ECBI and extended
loans to the financially distrained bank pursuant to Sections 11 and
14 of R.A. No. 7353 because the BSPs power is limited only to
supervision and management take-over of banks, and not
receivership.
Vivas argues that implementation of the questioned resolution was
tainted with arbitrariness and bad faith, stressing that ECBI was
placed under receivership without due and prior hearing, invoking
Section 11 of R.A. No. 7353 which states that the BSP may take
over the management of a rural bank after due hearing.33 He adds
that because R.A. No. 7353 is a special law, the same should
prevail over R.A. No. 7653 which is a general law.
The Court has taken this into account, but it appears from all over
the records that ECBI was given every opportunity to be heard and
improve on its financial standing. The records disclose that BSP
officials and examiners met with the representatives of ECBI,
including Vivas, and discussed their findings. 34 There were also
reminders that ECBI submit its financial audit reports for the years
2007 and 2008 with a warning that failure to submit them and a
written explanation of such omission shall result in the imposition
of a monetary penalty.35More importantly, ECBI was heard on its
motion for reconsideration. For failure of ECBI to comply, the MB
came out with Resolution No. 1548 denying its request for
reconsideration of Resolution No. 726. Having been heard on its
motion for reconsideration, ECBI cannot claim that it was deprived
of its right under the Rural Bank Act.
Close Now, Hear Later
At any rate, if circumstances warrant it, the MB may forbid a bank
from doing business and place it under receivership without prior
notice and hearing. Section 30 of R.A. No. 7653 provides, viz:
Sec. 30. Proceedings in Receivership and Liquidation. Whenever,
upon report of the head of the supervising or examining
department, the Monetary Board finds that a bank or quasi-bank:
(a) is unable to pay its liabilities as they become due in the
ordinary course of business: Provided, That this shall not
include inability to pay caused by extraordinary demands
induced by financial panic in the banking community;

(b) has insufficient realizable assets, as determined by the

Bangko Sentral, to meet its liabilities; or
(c) cannot continue in business without involving probable
losses to its depositors or creditors; or
(d) has wilfully violated a cease and desist order under
Section 37 that has become final, involving acts or
transactions which amount to fraud or a dissipation of the
assets of the institution; in which cases, the Monetary
Board may summarily and without need for prior hearing
forbid the institution from doing business in the Philippines
and designate the Philippine Deposit Insurance Corporation
as receiver of the banking institution. [Emphases supplied.]
x x x x.
Accordingly, there is no conflict which would call for the application
of the doctrine that a special law should prevail over a general law.
It must be emphasized that R.A .No. 7653 is a later law and under
said act, the power of the MB over banks, including rural banks,
was increased and expanded. The Court, in several cases, upheld
the power of the MB to take over banks without need for prior
hearing. It is not necessary inasmuch as the law entrusts to the MB
the appreciation and determination of whether any or all of the
statutory grounds for the closure and receivership of the erring
bank are present. The MB, under R.A. No. 7653, has been invested
with more power of closure and placement of a bank under
receivership for insolvency or illiquidity, or because the banks
continuance in business would probably result in the loss to
depositors or creditors. In the case of Bangko Sentral Ng Pilipinas
Monetary Board v. Hon. Antonio-Valenzuela,36 the Court reiterated
the doctrine of "close now, hear later," stating that it was justified
as a measure for the protection of the public interest. Thus:
The "close now, hear later" doctrine has already been justified as a
measure for the protection of the public interest. Swift action is
called for on the part of the BSP when it finds that a bank is in dire
straits. Unless adequate and determined efforts are taken by the
government against distressed and mismanaged banks, public
faith in the banking system is certain to deteriorate to the
prejudice of the national economy itself, not to mention the losses
suffered by the bank depositors, creditors, and stockholders, who
all deserve the protection of the government.37 [Emphasis
supplied]
In Rural Bank of Buhi, Inc. v. Court of Appeals, 38 the Court also
wrote that
x x x due process does not necessarily require a prior hearing; a
hearing or an opportunity to be heard may be subsequent to the

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closure. One can just imagine the dire consequences of a prior
hearing: bank runs would be the order of the day, resulting in panic
and hysteria. In the process, fortunes may be wiped out and
disillusionment will run the gamut of the entire banking
community.39
The doctrine is founded on practical and legal considerations to
obviate unwarranted dissipation of the banks assets and as a valid
exercise of police power to protect the depositors, creditors,
stockholders, and the general public.40 Swift, adequate and
determined actions must be taken against financially distressed
and mismanaged banks by government agencies lest the public
faith in the banking system deteriorate to the prejudice of the
national economy.
Accordingly, the MB can immediately implement its resolution
prohibiting a banking institution to do business in the Philippines
and, thereafter, appoint the PDIC as receiver. The procedure for the
involuntary closure of a bank is summary and expeditious in
nature. Such action of the MB shall be final and executory, but may
be later subjected to a judicial scrutiny via a petition for certiorari
to be filed by the stockholders of record of the bank representing a
majority of the capital stock. Obviously, this procedure is designed
to protect the interest of all concerned, that is, the depositors,
creditors and stockholders, the bank itself and the general public.
The protection afforded public interest warrants the exercise of a
summary closure.
In the case at bench, the ISD II submitted its memorandum, dated
February 17, 2010, containing the findings noted during the
general examination conducted on ECBI with the cut-off date of
September 30, 2009. The memorandum underscored the inability
of ECBI to pay its liabilities as they would fall due in the usual
course of its business, its liabilities being in excess of the assets
held. Also, it was noted that ECBIs continued banking operation
would most probably result in the incurrence of additional losses to
the prejudice of its depositors and creditors. On top of these, it was
found that ECBI had willfully violated the cease-and-desist order of
the MB issued in its June 24, 2009 Resolution, and had disregarded
the BSP rules and directives. For said reasons, the MB was forced
to issue the assailed Resolution No. 276 placing ECBI under
receivership. In addition, the MB stressed that it accorded ECBI
ample time and opportunity to address its monetary problem and
to restore and improve its financial health and viability but it failed
to do so.
In light of the circumstances obtaining in this case, the application
of the corrective measures enunciated in Section 30 of R.A. No.

7653 was proper and justified. Management take-over under

Section 11 of R.A. No. 7353 was no longer feasible considering the
financial quagmire that engulfed ECBI showing serious conditions
of insolvency and illiquidity. Besides, placing ECBI under
receivership would effectively put a stop to the further draining of
its assets.
No Undue Delegation of Legislative Power
Lastly, the petitioner challenges the constitutionality of Section 30
of R.A. No. 7653, as the legislature granted the MB a broad and
unrestrained power to close and place a financially troubled bank
under receivership. He claims that the said provision was an undue
delegation of legislative power. The contention deserves scant
consideration.
Preliminarily, Vivas attempt to assail the constitutionality of
Section 30 of R.A. No. 7653 constitutes collateral attack on the said
provision of law. Nothing is more settled than the rule that the
constitutionality of a statute cannot be collaterally attacked as
constitutionality issues must be pleaded directly and not
collaterally.41 A collateral attack on a presumably valid law is not
permissible. Unless a law or rule is annulled in a direct proceeding,
the legal presumption of its validity stands.42
Be that as it may, there is no violation of the non-delegation of
legislative power.1wphi1 The rationale for the constitutional
proscription is that "legislative discretion as to the substantive
contents of the law cannot be delegated. What can be delegated is
the discretion to determine how the law may be enforced, not what
the law shall be. The ascertainment of the latter subject is a
prerogative of the legislature. This prerogative cannot be abdicated
or surrendered by the legislature to the delegate."43
"There are two accepted tests to determine whether or not there is
a valid delegation of legislative power, viz, the completeness test
and the sufficient standard test. Under the first test, the law must
be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate the only thing
he will have to do is enforce it. Under the sufficient standard test,
there must be adequate guidelines or stations in the law to map
out the boundaries of the delegate's authority and prevent the
delegation from running riot. Both tests are intended to prevent a
total transference of legislative authority to the delegate, who is
not allowed to step into the shoes of the legislature and exercise a
power essentially legislative."44
In this case, under the two tests, there was no undue delegation of
legislative authority in the issuance of R.A. No. 7653. To address
the growing concerns in the banking industry, the legislature has

224
sufficiently empowered the MB to effectively monitor and supervise
banks and financial institutions and, if circumstances warrant, to
forbid them to do business, to take over their management or to
place them under receivership. The legislature has clearly spelled
out the reasonable parameters of the power entrusted to the MB
and assigned to it only the manner of enforcing said power. In
other words, the MB was given a wide discretion and latitude only
as to how the law should be implemented in order to attain its
objective of protecting the interest of the public, the banking
industry and the economy.
WHEREFORE, the petition for prohibition is DENIED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA
ROBERTO A. ABAD
Associate Justice
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P. A. SERENO
Chief Justice