[G.R. No. 156067.
August 11, 2004] In the latter action, Madrigal alleged (1) that it had entered into a joint venture
MADRIGAL TRANSPORT, INC., petitioner, vs. LAPANDAY HOLDINGS
CORPORATION; MACONDRAY AND COMPANY, INC.; and LUIS P. LORENZO
JR., respondents.
DECISION
PANGANIBAN, J.:
The special civil action for certiorari and appeal are two different remedies that
are mutually exclusive; they are not alternative or successive. Where appeal is
available, certiorari will not prosper, even if the ground therefor is grave abuse of
discretion. Basic is the rule that certiorari is not a substitute for the lapsed remedy of
appeal.
The Case
Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing
the February 28, 2002 Decision[2] and the November 5, 2002 Resolution[3] of the
Court of Appeals (CA) in CA-GR SP No. 54861. The challenged Decision disposed as
follows:
WHEREFORE, in consideration of the foregoing premises, private respondents
Lapanday and Lorenzo, Jr.s Motion for Reconsideration dated 10 February 2000 is
GRANTED. Accordingly, the Resolution dated 10 January 2000 is RECONSIDERED and
SET ASIDE, thereby dismissing the Petition for Certiorari dated 10 September
1999.[4]
The assailed Resolution denied reconsideration.
The Facts
The pertinent facts are undisputed. On February 9, 1998, Petitioner Madrigal
Transport, Inc. (Madrigal) filed a Petition for Voluntary Insolvency before the Regional
Trial Court (RTC) of Manila, Branch 49.[5] Subsequently, on February 21, 1998,
petitioner filed a Complaint for damages against Respondents Lapanday Holdings
Corporation (Lapanday), Macondray and Company, Inc. (Macondray), and Luis P.
Lorenzo Jr. before the RTC of Manila, Branch 36.[6]
agreement with Lapanday for the primary purpose of operating vessels to service the
shipping requirements of Del Monte Philippines, Inc.;[7] (2) that it had done so on the
strength of the representations of Lorenzo, in his capacity either as chairman of the
board or as president of Del Monte, Lapanday and Macondray; (3) that Macondray
had thereafter been appointed -- allegedly upon the insistence of Lapanday -- as
broker, for the purpose of securing charter hire contracts from Del Monte; (4) that
pursuant to the joint venture agreement, Madrigal had purchased a vessel by
obtaining a P10,000,000 bank loan; and (5) that contrary to their representations and
guarantees and despite demands, Lapanday and Lorenzo had allegedly been unable
to deliver those Del Monte charter hire contracts.[8]
On February 23, 1998, the insolvency court (RTC Branch 49) declared petitioner
insolvent.[9] On March 30, 1998 and April 6, 1998, Respondents Lapanday, Lorenzo
and Macondray filed their respective Motions to Dismiss the case pending before the
RTC Branch 36.[10]
On December 16, 1998, Branch 36 granted the Motion, for failure of the
Complaint to state a cause of action. Applying Sections 32 and 33 of the Insolvency
Law,[11]the trial court opined that upon the filing by Madrigal of a Petition for
Voluntary Insolvency, the latter lost the right to institute the Complaint for Damages.
The RTC ruled that the exclusive right to prosecute the actions belonged to the court-
appointed assignee.[12]
On January 26, 1999, petitioner filed a Motion for Reconsideration, [13] which
was later denied on July 26, 1999.[14] Subsequently, petitioner filed a Petition
for Certiorari with the Court of Appeals, seeking to set aside the December 16, 1998
and the July 26, 1999 Orders of the trial court. [15] On September 29, 1999, the CA
issued a Resolution requiring petitioner to explain why its Petition should not be
dismissed outright, on the ground that the questioned Orders should have been
elevated by ordinary appeal.[16]
On January 10, 2000, the appellate court ruled that since the main issue in the
instant case was purely legal, the Petition could be treated as one for review as an
exception to the general rule that certiorari was not proper when appeal was
available.[17] Respondents Lapanday and Lorenzo challenged this ruling through a
Motion for Reconsideration dated February 10, 2000.[18] The CA heard the Motion for
Reconsideration in oral arguments on April 7, 2000.[19]
Ruling of the Court of Appeals
On February 28, 2002, the appellate court issued the assailed Decision granting
Respondents Lapanday and Lorenzos Motion for Reconsideration and dismissing
Madrigals Petition for Certiorari. The CA opined that an order granting a motion to
dismiss was final and thus the proper subject of an appeal, not certiorari.[20]
Furthermore, even if the Petition could be treated as an appeal, it would still
have to be dismissed for lack of jurisdiction, according to the CA.[21] The appellate
court held that the issues raised by petitioner involved pure questions of law that
should be brought to the Supreme Court, pursuant to Section 2 of Rule 50 and Section
2(c) of Rule 41 of the Rules of Court.[22]
Hence, this Petition.[23]
The Issues
In its Statement of Issues, petitioner contends:
I
The Honorable Court of Appeals committed egregious error by ruling that the order
of the lower court which granted private respondents Motions to Dismiss are not
proper subjects of a Petition for Certiorari under Rule 65.
A. Section 5, Rule 16 does not apply in the present case since the grounds for
dismissal [were] petitioners purported lack of capacity to sue and its failure to state
a cause of action against private respondents, and not any of the three (3) grounds
provided under said provision, namely, res judicata, extinction of the claim, and
Statute of Frauds.
B. Section 1 of Rule 41, which is the applicable provision in petitioners case,
expressly proscribes the taking of an appeal from an order denying a motion for
reconsideration or one which dismisses an action without prejudice, instead, the
proper remedy is a special civil action under Rule 65.
C. A petition for certiorari under Rule 65 was correctly resorted to by petitioner
from the dismissal order of the lower court, which had clearly acted with grave
abuse of discretion amounting to lack of jurisdiction.
II
The Honorable Court of Appeals committed serious error in ruling that it had no
jurisdiction to entertain the Petition for Certiorari filed by petitioner before it.
A. Section 2, Rule 50 nor Section 2(c) and Section 2(c), Rule 41 find no application in
the present case, since said rule contemplates of a case where an appeal is the
proper remedy, and not where the appropriate remedy is a petition
for certiorari where questions of facts and laws may be reviewed by the court a
quo.
B. The court a quo erroneously concluded that it has no jurisdiction over the subject
matter of the petition based on the wrong premise that an appeal from the lower
courts dismissal order is the proper remedy by applying Section 2, Rule 50 and
Section 2(c), Rule 41 of the Rules of Court.[24]
The Courts Ruling
The Petition is unmeritorious.
First Issue:
Remedy Against Dismissal of Complaint
The resolution of this case hinges on the proper remedy: an appeal or a petition
for certiorari. Petitioner claims that it correctly questioned the trial courts Order
through its Petition for Certiorari. Respondents insist that an ordinary appeal was the
proper remedy. We agree with respondents.
Appeal
Under Rule 41, Rules of Court, an appeal may be taken from a judgment or final
order that completely disposes of the case, or of a particular matter therein when
declared by the Rules of Court to be appealable. [25] The manner of appealing an RTC
judgment or final order is also provided in Rule 41 as follows:
Section 2. Modes of appeal.
(a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing
a notice of appeal with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.
(b) Petition for review. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
(c) Appeal by certiorari. In all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court by petition for review
on certiorari in accordance with Rule 45.[26]
An order or a judgment is deemed final when it finally disposes of a pending
action, so that nothing more can be done with it in the trial court. In other words, the
order or judgment ends the litigation in the lower court. Au contraire, an
interlocutory order does not dispose of the case completely, but leaves something to
be done as regards the merits of the latter.[27]
Petition for Certiorari
A petition for certiorari is governed by Rule 65, which reads:
Section 1. Petition for certiorari. When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or
his jurisdiction, and there is no appeal, or any 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 judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of Section 3, Rule 46.[28]
A writ of certiorari may be issued only for the correction of errors of jurisdiction
or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ
cannot be used for any other purpose, as its function is limited to keeping the inferior
court within the bounds of its jurisdiction.[29]
For certiorari to prosper, the following requisites must concur: (1) the writ is
directed against a tribunal, a board or any officer exercising judicial or quasi-judicial
functions; (2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in
the ordinary course of law.[30]
Without jurisdiction means that the court acted with absolute lack of
authority.[31] There is excess of jurisdiction when the court transcends its power or
acts without any statutory authority.[32] Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as to be equivalent to lack or excess
of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner
by reason of passion, prejudice, or personal hostility; and such exercise is so patent
or so gross as to amount to an evasion of a positive duty or to a virtual refusal either
to perform the duty enjoined or to act at all in contemplation of law.[33]
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are substantial
distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the correction of errors
of jurisdiction, not errors of judgment.[34] In Pure Foods Corporation v. NLRC, we
explained the simple reason for the rule in this light:
When a court exercises its jurisdiction, an error committed while so engaged does
not deprive it of the jurisdiction being exercised when the error is committed. If it
did, every error committed by a court would deprive it of its jurisdiction and every
erroneous judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule. Consequently, an error of
judgment that the court may commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari.[35]
The supervisory jurisdiction of a court over the issuance of a writ
of certiorari cannot be exercised for the purpose of reviewing the intrinsic
correctness of a judgment of the lower court -- on the basis either of the law or the
facts of the case, or of the wisdom or legal soundness of the decision.[36] Even if the
findings of the court are incorrect, as long as it has jurisdiction over the case, such
correction is normally beyond the province of certiorari.[37] Where the error is not
one of jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is
the remedy. [38]
 As to the Manner of Filing. Over an appeal, the CA exercises its appellate
jurisdiction and power of review. Over a certiorari, the higher court uses its original
jurisdiction in accordance with its power of control and supervision over the
proceedings of lower courts. [39] An appeal is thus a continuation of the original suit,
while a petition for certiorari is an original and independent action that was not part
of the trial that had resulted in the rendition of the judgment or order complained
of.[40] The parties to an appeal are the original parties to the action. In contrast, the
parties to a petition for certiorari are the aggrieved party (who thereby becomes the
petitioner) against the lower court or quasi-judicial agency, and the prevailing parties
(the public and the private respondents, respectively).[41]
As to the Subject Matter. Only judgments or final orders and those that the
Rules of Court so declare are appealable.[42] Since the issue is jurisdiction, an original
action for certiorari may be directed against an interlocutory order of the lower court
prior to an appeal from the judgment; or where there is no appeal or any plain,
speedy or adequate remedy.[43]
As to the Period of Filing. Ordinary appeals should be filed within fifteen days
from the notice of judgment or final order appealed from. [44] Where a record on
appeal is required, the appellant must file a notice of appeal and a record on appeal
within thirty days from the said notice of judgment or final order. [45] A petition for
review should be filed and served within fifteen days from the notice of denial of the
decision, or of the petitioners timely filed motion for new trial or motion for
reconsideration.[46] In an appeal by certiorari, the petition should be filed also within
fifteen days from the notice of judgment or final order, or of the denial of the
petitioners motion for new trial or motion for reconsideration. [47]
On the other hand, a petition for certiorari should be filed not later than sixty
days from the notice of judgment, order, or resolution. [48] If a motion for new trial or
motion for reconsideration was timely filed, the period shall be counted from the
denial of the motion.[49]
As to the Need for a Motion for Reconsideration. A motion for reconsideration
is generally required prior to the filing of a petition for certiorari, in order to afford
the tribunal an opportunity to correct the alleged errors. Note also that this motion
is a plain and adequate remedy expressly available under the law. [50] Such motion is
not required before appealing a judgment or final order. [51]
Certiorari Not the Proper Remedy
if Appeal Is Available
Where appeal is available to the aggrieved party, the action for certiorari will
not be entertained. Remedies of appeal (including petitions for review)
and certiorariare mutually exclusive, not alternative or
successive.[52] Hence, certiorari is not and cannot be a substitute for an appeal,
especially if ones own negligence or error in ones choice of remedy occasioned such
loss or lapse.[53] One of the requisites of certiorari is that there be no available appeal
or any plain, speedy and adequate remedy.[54] Where an appeal is
available, certiorari will not prosper, even if the ground therefor is grave abuse of
discretion.
Second Issue:
CA Jurisdiction
Petitioner was ascribing errors of judgment, not jurisdiction, in its Petition
for Certiorari filed with the Court of Appeals. The issue raised there was the trial
courts alleged error in dismissing the Complaint for lack of cause of action. Petitioner
argues that it could still institute the Complaint, even if it had filed a Petition for
Insolvency earlier.[55] As petitioner was challenging the trial courts interpretation of
the law -- posing a question of law -- the issue involved an error of judgment, not of
jurisdiction. An error of judgment committed by a court in the exercise of its
legitimate jurisdiction is not necessarily equivalent to grave abuse of discretion. [56]
The instant case falls squarely with Barangay Blue Ridge A of QC v. Court of
Appeals.[57] In that case, the trial court granted the Motion to Dismiss on the ground
of failure to state a cause of action. After the Motion for Reconsideration was denied,
petitioner filed a Petition for Certiorari with the CA. The appellate court denied the
Petition on the ground that the proper remedy was appeal. Holding that an error of
judgment should be reviewed through an ordinary appeal, this Court upheld the CA.
The Dismissal -- a Final Order
An order of dismissal, whether correct or not, is a final order. [58] It is not
interlocutory because the proceedings are terminated; it leaves nothing more to be
done by the lower court. Therefore the remedy of the plaintiff is to appeal the
order.[59]
Petitioner avers that Section 5 of Rule 16[60] bars the filing of an appeal when
the dismissal is based on lack of cause of action. It adds that Section 5 limits the
remedy of appeal only to dismissals grounded on prior judgments or on the statute
of limitations, or to claims that have been extinguished or are unenforceable. We find
this interpretation absurd.
 The provision is clear. Dismissals on the aforesaid grounds constitute res
judicata. However, such dismissals are still subject to a timely appeal. For those based
on other grounds, the complaint can be refiled. Section 5, therefore, confirms that
an appeal is the remedy for the dismissal of an action.
G.R. No. 181613 | September 11, 2009
Citing Sections 1(a) and 1(h), Rule 41,[61] petitioner further claims that it was
prohibited from filing an appeal. Section 1(a) of the said Rule prohibits the filing of an ROSALINDA A. PENERA, petitioner
appeal from an order denying a motion for reconsideration, because the remedy is
-versus-
to appeal the main decision as petitioner could have done. In fact, under Section 9,
COMMISION ON ELECTIONS and EDGAR T. ANDANAR, respondents
Rule 37, the remedy against an order denying a motion for reconsideration is to
appeal the judgment or final order. Section 1(h) does not apply, because the trial DECISION
courts Order did not dismiss the action without prejudice. [62]

CHICO-NAZARIO, J.:
Exception to the Rule
Not Established by Petitioner
This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary
We are not unaware of instances when this Court has granted certiorari despite Injunction and/or Temporary Restraining Order [1] under Rule 65, in relation to Rule
the availability of appeal.[63] Where the exigencies of the case are such that the
ordinary methods of appeal may not prove adequate -- either in point of promptness 64 of the Rules of Court, seeks the nullification of the Resolution [2] dated 30 January
or completeness, so that a partial if not a total failure of justice could result -- a writ 2008 of the Commission on Elections (COMELEC) en banc.Said Resolution denied the
of certiorari may still be issued.[64] Petitioner cites some of these exceptions to justify
the remedy it has undertaken with the appellate court,[65] but these are not Motion for Reconsideration of the earlier Resolution [3] dated 24 July 2007 of the
applicable to the present factual milieu. COMELEC Second Division in SPA No. 07-224, ordering the disqualification of herein
Even assuming that the Order of the RTC was erroneous, its error did not petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of
constitute grave abuse of discretion. Petitioner asserts that the trial court should not
the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007
have dismissed the Complaint or should have at least allowed the substitution of the
assignee in petitioners stead.[66] These alleged errors of judgment, however, do not Synchronized National and Local Elections.
constitute a despotic, capricious, or whimsical exercise of power. On the contrary,
petitioner availed of certiorari because the 15-day period within which to file an
appeal had already lapsed. Basic is the rule that certiorari is not a substitute for the The antecedents of the case, both factual and procedural, are set forth hereunder:
lapsed remedy of appeal.
As previously stressed, appeal -- not certiorari -- was the correct remedy to Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty
elevate the RTCs Order granting the Motion to Dismiss. The appeal, which would have
involved a pure question of law, should have been filed with the Supreme Court candidates in Sta. Monica during the 14 May 2007 elections.
pursuant to Section 2 (c) of Rule 41 and Section 2 of Rule 50, [67] Rules of Court.
WHEREFORE, this Petition is DENIED, and the challenged Decision and On 2 April 2007, Andanar filed before the Office of the Regional Election Director
Resolution AFFIRMED.
(ORED), Caraga Region (Region XIII), a Petition for Disqualification[4]against Penera,
Costs against petitioner.
as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to
SO ORDERED. her political party,[5] for unlawfully engaging in election campaigning and partisan
political activity prior to the commencement of the campaign period. The petition
was docketed as SPA No. 07-224.
Andanar claimed that on 29 March 2007 a day before the start of the authorized
campaign period on 30 March 2007 Penera and her partymates went around the
different barangays in Sta. Monica, announcing their candidacies and requesting the
people to vote for them on the day of the elections. Attached to the Petition were
the Affidavits of individuals[6] who witnessed the said incident.
Penera alone filed an Answer[7] to the Petition on 19 April 2007, averring
that the charge of premature campaigning was not true. Although Penera admitted
that a motorcade did take place, she explained that it was simply in accordance with
the usual practice in nearby cities and provinces, where the filing of certificates of
candidacy (COCs) was preceded by a motorcade, which dispersed soon after the
completion of such filing. In fact, Penera claimed, in the motorcade held by her
political party, no person made any speech, not even any of the candidates. Instead,
there was only marching music in the background and a grand standing for the
purpose of raising the hands of the candidates in the motorcade. Finally, Penera
cited Barroso v. Ampig[8] in her defense, wherein the Court supposedly ruled that a
motorcade held by candidates during the filing of their COCs was not a form of
political campaigning.
Also on 19 April 2007, Andanar and Penera appeared with their counsels
before the ORED-Region XIII, where they agreed to submit their position papers and
other evidence in support of their allegations.[9]
After the parties filed their respective Position Papers, the records of the
case were transmitted to the COMELEC main office in Manila for adjudication. It was
subsequently raffled to the COMELEC Second Division.
While SPA No. 07-224 was pending before the COMELEC Second Division,
the 14 May 2007 elections took place and, as a result thereof, Penera was proclaimed
the duly elected Mayor of Sta. Monica. Penera soon assumed office on 2 July 2002.
On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA
No. 07-224, penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified
Penera from continuing as a mayoralty candidate in Sta. Monica, for engaging in
premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election
Code.
The COMELEC Second Division found that:
On the afternoon of 29 March 2007, the 1st [sic] day to file
the certificates of candidacy for local elective positions and a day
before the start of the campaign period for the May 14, 2007
elections [some of the members of the political party Partido
Padajon Surigao], headed by their mayoralty candidate Datty
Penera, filed their respective Certificates of Candidacy before the
Municipal Election Officer of Sta. Monica, Surigao del Norte.
Accompanied by a bevy of supporters, [Penera and her
partymates] came to the municipal COMELEC office on board a
convoy of two (2) trucks and an undetermined number of
motorcycles, laden with balloons ad [sic] posters/banners
containing names and pictures and the municipal positions for
which they were seeking election. Installed with [sic] one of the
trucks was a public speaker sound subsystem which broadcast [sic]
the intent the [sic] run in the coming elections. The truck had the
posters of Penera attached to it proclaiming his [sic] candidacy for
mayor. The streamer of [Mar Longos, a candidate for the position
of Board Member,] was proudly seen at the vehicles side. The
group proceeded to motorcade until the barangays of Bailan,
Libertad and as afar [sic] as Mabini almost nine (9) kilometers from
Sta. Monica. [Penera and her partymates] were seen aboard the
vehicles and throwing candies to the residents and onlookers.
Various affidavits and pictures were submitted elucidating
the above-mentioned facts. The above facts were also admitted in
the Answer, the Position Paper and during the hearings conducted
for this case, the only defense propounded by [Penera] is that such
 acts allegedly do not constitute campaigning and is therefore not
the ponente, he stressed that, indeed, Penera should be made accountable for her
proscribed by the pertinent election laws.
actions after the filing of her COC on 29 March 2007. Prior thereto, there was no
xxxx
candidate yet whose candidacy would have been enhanced by the premature
What we however find disturbing is [Peneras] reference to campaigning.
the Ampig Case as the justification for the acts committed by
[her]. There is really no reference to the acts or similar acts
committed by [Penera] as having been considered as not It was the third member of the COMELEC Second Division, Commissioner
constituting political campaign or partisan political activity. The Rene V. Sarmiento (Sarmiento) who put forth a Dissenting Opinion [13] on the 24 July
issue in that case is whether or not the defect of the lack of a
certification against non-forum [sic] shopping should result to the 2007 Resolution. Commissioner Sarmiento believed that the pieces of evidence
immediate dismissal of the election cases filed in that case. There submitted by Andanar did not sufficiently establish probable cause that Penera
is nothing in said case justifying a motorcade during the filing of
certificates of candidacy. [Peneras] reliance thereon is therefore engaged in premature campaigning, in violation of Sections 80 and 68 of the Omnibus
misplaced and of no potency at all. Election Code. The two photocopied pictures, purporting to be those of Penera, did

xxxx not clearly reveal what was actually happening in the truck or who were the
passengers thereof. Likewise, the Affidavits seemed to have been prepared and
However, the photos submitted by [Andanar] only
identified [Penera] and did not have any notation identifying or executed by one and the same person because they had similar sentence
indicating any of the other [candidates from Peneras party]. It construction and form, and they were sworn to before the same attesting officer.
cannot be conclusively proven that the other [candidates from
Peneras party] were indeed with Penera during the
Motorcade. More importantly, the Answer and the Position Paper Penera filed before the COMELEC en banc a Motion for
contain admissions referring only to [Penera]. There is therefore no
Reconsideration[14] of the 24 July 2007 Resolution of the COMELEC Second Division,
justification for a whole sale [sic] disqualification of all the
[candidates from Peneras party], as even the petition failed to maintaining that she did not make any admission on the factual matters stated in the
mention particularly the participation of the other individual [party
appealed resolution. Penera also contended that the pictures and Affidavits
members].[10]
submitted by Andanar should not have been given any credence. The pictures were
mere photocopies of the originals and lacked the proper authentication, while the
The afore-quoted findings of fact led the COMELEC Second Division to decree:
Affidavits were taken ex parte, which would almost always make them incomplete
and inaccurate. Subsequently, Penera filed a Supplemental Motion for
PREMISES CONSIDERED, this Commission resolves to disqualify
[15]
[Penera] but absolves the other [candidates from Peneras party] Reconsideration, explaining that supporters spontaneously accompanied Penera
from violation of section 80 and 68 of the Omnibus Elections [sic] and her fellow candidates in filing their COCs, and the motorcade that took place
Code.[11]
after the filing was actually part of the dispersal of said supporters and their
transportation back to their respective barangays.
Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion [12] on
the 24 July 2007 Resolution. Although Commissioner Tuason concurred with
 In the Resolution dated 30 January 2008, the COMELEC en banc denied
Peneras Motion for Reconsideration, disposing thus:
WHEREFORE, this Commission RESOLVES to DENY the
instant Motion for Reconsideration filed by [Penera] for UTTER
LACK OF MERIT.[16]
The COMELEC en banc ruled that Penera could no longer advance the
arguments set forth in her Motion for Reconsideration and Supplemental Motion for
Reconsideration, given that she failed to first express and elucidate on the same in
her Answer and Position Paper. Penera did not specifically deny the material
averments that the motorcade went as far as Barangay Mabini, announcing their
candidacy and requesting the people to vote for them on Election Day, despite the
fact that the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore, these material averments should be
considered admitted. Although the COMELEC en banc agreed that no undue
importance should be given to sworn statements or affidavits submitted as evidence,
this did not mean that such affidavits should not be given any evidentiary weight at
all. Since Penera neither refuted the material averments in Andanars Petition and the
Affidavits attached thereto nor submitted countervailing evidence, then said
Affidavits, even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted by Andanar as
evidence would have been unreliable, but only if they were presented by their
lonesome. However, said pictures, together with Peneras admissions and the
Affidavits of Andanars witnesses, constituted sufficient evidence to establish Peneras
violation of the rule against premature campaigning. Lastly, the COMELEC en
banc accused Penera of deliberately trying to mislead the Commission by
citing Barroso, given that the said case was not even remotely applicable to the case
at bar.
Consistent with his previous stand, Commissioner Sarmiento again
dissented[17] from the 30 January 2008 Resolution of the COMELEC en banc. He still
believed that Andanar was not able to adduce substantial evidence that would
support the claim of violation of election laws. Particularly, Commissioner Sarmiento
accepted Peneras explanation that the motorcade conducted after the filing by
Penera and the other candidates of their COCs was merely part of the dispersal of the
spontaneous gathering of their supporters. The incident was only in accord with
normal human social experience.
Still undeterred, Penera filed the instant Petition before us, praying that the
Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division
and en banc, respectively, be declared null and void for having been issued with grave
abuse of discretion amounting to lack or excess of jurisdiction.
In a Resolution[18] dated 4 March 2008, we issued a Temporary Restraining
Order (TRO), enjoining the COMELEC from implementing the assailed Resolutions, on
the condition that Penera post a bond in the amount of P5,000.00. We also directed
COMELEC and Andanar to comment on the instant Petition.
After the COMELEC, through the Office of the Solicitor General (OSG), and
Andanar filed their respective Comments[19] on the Petition at bar, we required
Penera, in a Resolution[20] dated 17 June 2008, to file a Reply. However, as no Reply
was filed in due time, we dismissed Peneras Petition in a Resolution [21] dated 14
October 2008, in accordance with Rule 56, Section 5(e) of the Rules of
Court.[22] Penera subsequently filed an Ex Parte Motion to Admit Reply,[23] which we
treated as a Motion for Reconsideration of the Resolution dated 14 October
2008. On 11 November 2008, we issued another Resolution reinstating Peneras
Petition.[24]
Penera presents the following issues for our consideration:
 I.
Whether or not [Penera] has engaged in an election campaign or
partisan political activity outside the campaign period.
II.
Whether the contents of the complaint are deemed admitted for
failure of [Penera] to specifically deny the same.
III.
Whether or not [Andanar] has presented competent and
substantial evidence to justify a conclusion that [Penera] violated
Section 80 and 68 of the Omnibus Election Code.
IV.
Whether or not [the COMELEC] committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction in finding
that the act of [Penera] in conducting a motorcade before the filing
of her certificate of candidacy constitutes premature campaigning.
V.
Whether or not [the COMELEC] committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction when it
resolves [sic] to disqualify [Penera] despite the failure of [Andanar]
to present competent, admissible and substantial evidence to
prove [the] violation of Section 68 and 80 of the Omnibus Election
Code.
Penera claims that the COMELEC exercised its discretion despotically,
arbitrarily and whimsically in disqualifying her as a mayoralty candidate in Sta.
Monica on the ground that she engaged in premature campaigning. She asserts that
the evidence adduced by Andanar was grossly insufficient to warrant the ruling of the
COMELEC.
Penera insists that the COMELEC Second Division erred in its findings of fact,
basically adopting Andanars allegations which, contrary to the belief of the COMELEC
Second Division, Penera never admitted. Penera maintains that the motorcade was
spontaneous and unplanned, and the supporters merely joined Penera and the other
candidates from her party along the way to, as well as within the premises of, the
office of the COMELEC Municipal Election Officer. Andanars averments that after
Penera and the other candidates from her party filed their COCs, they held a
motorcade in the different barangays of Sta. Monica, waived their hands to the
public and threw candies to the onlookers were not supported by competent
substantial evidence. Echoing Commissioner Sarmientos dissent from the assailed
COMELEC Resolutions, Penera argues that too much weight and credence were given
to the pictures and Affidavits submitted by Andanar. The declaration by the COMELEC
that it was Penera in the pictures is tenuous and erroneous, as the COMELEC has no
personal knowledge of Peneras identity, and the said pictures do not clearly reveal
the faces of the individuals and the contents of the posters therein. In the same vein,
the Affidavits of Andanars known supporters, executed almost a month after
Andanar filed his Petition for Disqualification before the ORED-Region XIII, were
obviously prepared and executed by one and the same person, because they have a
similar sentence construction, and computer font and form, and were even sworn to
before the same attesting officer on the same date.
We find no merit in the instant Petition.
The questions of fact
Crystal clear from the above arguments is that Penera is raising only
questions of fact in her Petition presently before us. We do not find any reason to
pass upon the same, as this Court is not a trier of facts. It is not the function of the
Court to review, examine and evaluate or weigh the probative value of the evidence
presented. A question of fact would arise in such an event.

The sole function of a writ of certiorari is to address issues of want of
jurisdiction or grave abuse of discretion, and it does not include a review of the
tribunals evaluation of the evidence.[25] Because of its fact-finding facilities and its
knowledge derived from actual experience, the COMELEC is in a peculiarly
advantageous position to evaluate, appreciate and decide on factual questions
before it. Factual findings of the COMELEC, based on its own assessments and duly
supported by evidence, are conclusive on this Court, more so in the absence of a
grave abuse of discretion, arbitrariness, fraud, or error of law in the questioned
resolutions. Unless any of these causes are clearly substantiated, the Court will not
interfere with the findings of fact of the COMELEC.[26]
Grave abuse of discretion is such capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It
must be grave, as when it is exercised arbitrarily or despotically by reason of passion
or personal hostility. The abuse must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law.[27]
We find no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the COMELEC Second Division in disqualifying Penera as a
mayoralty candidate in Sta. Monica in the Resolution dated 24 July 2007; and also on
the part of the COMELEC en banc in denying Peneras Motion for Reconsideration on
the Resolution dated 30 January 2008. Said Resolutions are sufficiently supported by
substantial evidence, meaning, such evidence as a reasonable mind might accept as
adequate to support a conclusion.[28]
The prohibited act of premature campaigning is defined under Section 80 of
the Omnibus Election Code, to wit:
SECTION 80. Election campaign or partisan political activity outside
campaign period. It shall be unlawful for any person, whether or
not a voter or candidate, or for any party, or association of
persons, to engage in an election campaign or partisan political
activity except during the campaign period: Provided, That
political parties may hold political conventions or meetings to
nominate their official candidates within thirty
days before the commencement of the campaign period and forty-
five days for Presidential and Vice-Presidential election. (Emphasis
ours.)
If the commission of the prohibited act of premature campaigning is duly
proven, the consequence of the violation is clearly spelled out in Section 68 of the
said Code, which reads:
SECTION. 68. Disqualifications. - Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having
xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding
the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the
election laws. (Emphases ours.)
In the case at bar, it had been sufficiently established, not just by Andanars
evidence, but also those of Penera herself, that Penera and her partymates, after
filing their COCs on 29 March 2007, participated in a motorcade which passed
through the different barangays of Sta. Monica, waived their hands to the public, and
threw candies to the onlookers.
Indeed, Penera expressly admitted in her Position Paper that:
 Respondents actually had a motorcade of only two (2)
jeppneys [sic] and ten (10) motorcycles after filing their Certificate
of Candidacy at 3:00 P.M., March 29, 2007 without any speeches
made and only one streamer of a board member Candidate and
multi-colored balloons attached to the jeppneys [sic] and
motorcycles.[29](Emphasis ours.)
Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante
Platil, attached to Peneras Position Paper, gave an even more straightforward
account of the events, thus:
1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao
del Norte, Mayoralty Candidates Rosalinda CA. Penera [sic]
and her parties of four (4) kagawads filed their certificate of
candidacy at the COMELEC Office;
2. That their [sic] was a motorcade consisting of two jeppneys
[sic] and 10 motorcycles after actual registration with the
COMELEC with jeeps decorated with balloons and a streamer
of Margarito Longos, Board Member Candidate;
3. That the motorcade proceeded to three (3) barangays out of
the 11 barangays while supporters were throwing sweet
candies to the crowd;
4. That there was merriment and marching music without
mention of any name of the candidates more particularly lead-
candidate Rosalinda CA. Penera [sic];
5. That we were in the motorcade on that afternoon only riding
in one of the jeepneys.[30] (Emphases ours.)
In view of the foregoing admissions by Penera and her witnesses, Penera
cannot now be allowed to adopt a conflicting position.
More importantly, the conduct of a motorcade is a form of election
campaign or partisan political activity, falling squarely within the ambit of Section
79(b)(2) of the Omnibus Election Code, on [h]olding political caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against a candidate[.] A
motorcade is a procession or parade of automobiles or other motor vehicles. [31] The
conduct thereof during election periods by the candidates and their supporters is a
fact that need not be belabored due to its widespread and pervasive practice. The
obvious purpose of the conduct of motorcades is to introduce the candidates and the
positions, to which they seek to be elected, to the voting public; or to make them
more visible so as to facilitate the recognition and recollection of their names in the
minds of the voters come election time. Unmistakably, motorcades are undertaken
for no other purpose than to promote the election of a particular candidate or
candidates.
In the instant Petition, Penera never denied that she took part in the conduct
of the motorcade after she filed her COC on the day before the start of the campaign
period. She merely claimed that the same was not undertaken for campaign
purposes. Penera proffered the excuse that the motorcade was already part of the
dispersal of the supporters who spontaneously accompanied Penera and her
partymates in filing their COCs. The said supporters were already being transported
back to their respective barangays after the COC filing. Penera stressed that no
speech was made by any person, and there was only background marching music and
a grand standing for the purpose of raising the hands of the candidates in the
motorcade.
We are not convinced.
As we previously noted, Penera and her witnesses admitted that the
vehicles, consisting of two jeepneys and ten motorcycles, were festooned with multi-
colored balloons; the motorcade went around three barangays in Sta. Monica; and
Penera and her partymates waved their hands and threw sweet candies to the

crowd. With vehicles, balloons, and even candies on hand, Penera can hardly
persuade us that the motorcade was spontaneous and unplanned.
For violating Section 80 of the Omnibus Election Code, proscribing election
campaign or partisan political activity outside the campaign period, Penera must be
disqualified from holding the office of Mayor of Sta. Monica.
The questions of law
The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act
No. 8436, as amended by Republic Act No. 9369, provides a new definition of the
term candidate, as a result of which, premature campaigning may no longer be
committed.
Under Section 79(a) of the Omnibus Election Code, a candidate is any person aspiring
for or seeking an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or coalition of parties.
Republic Act No. 8436,[32] enacted on 22 December 1997, authorized the
On 10 February 2007, Republic Act No. 9369[33] took effect. Section 13 of Republic Act
COMELEC to use an automated election system for the process of voting, counting of
No. 9369 amended Section 11 of Republic Act No. 8436 and renumbered the same as
votes, and canvassing/consolidating the results of the national and local
the new Section 15 of Republic Act No. 8436. The pertinent portions of Section 15 of
elections. The statute also mandated the COMELEC to acquire automated counting
Republic Act No. 8436, as amended by Republic Act No. 9369, now read:
machines, computer equipment, devices and materials; and to adopt new electoral
forms and printing materials. In particular, Section 11 of Republic Act No. 8436
provided for the specifications of the official ballots to be used in the automated
election system and the guidelines for the printing thereof, the relevant portions of
which state:
SECTION 11. Official ballot. - The Commission shall prescribe the
size and form of the official ballot which shall contain the titles of
the positions to be filled and/or the propositions to be voted upon
in an initiative, referendum or plebiscite. Under each position, the
names of candidates shall be arranged alphabetically by surname
and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election inspectors shall affix
his/her signature to authenticate the official ballot shall be
provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate
in the election shall not be later than one hundred twenty (120)
days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one
which he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only upon
the start of the campaign period corresponding to the position for
which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of
the certificate of candidacy for the positions of President, Vice
President, Senators and candidates under the Party-List System as
well as petitions for registration and/or manifestation to
participate in the Party-List System shall be on February 9, 1998
while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998. (Emphases ours.)
SECTION.15. Official Ballot. - The Commission shall prescribe the
format of the electronic display and/or the size and form of the
official ballot, which shall contain the titles of the position to be
filled and/or the proposition to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays
must be constructed to present the names of all candidates for the
same position in the same page or screen, otherwise, the electronic
displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter
sees all of the ballot options on all pages before completing his or
 her vote and to allow the voter to review and change all ballot
According to the Dissenting Opinion, even if Peneras acts before the start of
choices prior to completing and casting his or her ballot. Under
each position to be filled, the names of candidates shall be the campaign period constitute election campaigning or partisan political activities,
arranged alphabetically by surname and uniformly indicated using
these are not punishable under Section 80 of the Omnibus Election Code given that
the same type size. The maiden or married name shall be listed in
the official ballot, as preferred by the female candidate. Under each she was not yet a candidate at that time. On the other hand, Peneras acts, if
proposition to be vote upon, the choices should be uniformly committed within the campaign period, when she was already a candidate, are
indicated using the same font and size.
A fixed space where the chairman of the board of election inspector likewise not covered by Section 80 as this provision punishes only acts outside the
shall affix her/her signature to authenticate the official ballot shall campaign period.
be provided.
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition of The Dissenting Opinion ultimately concludes that because of Section 15 of Republic
registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period Act No. 8436, as amended, the prohibited act of premature campaigning in Section
shall only be considered as a candidate at the start of the 80 of the Omnibus Election Code, is practically impossible to commit at any time.
campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable
to a candidate shall effect only upon the start of the aforesaid We disagree. Section 80 of the Omnibus Election Code remains relevant and
campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of applicable despite Section 15 of Republic Act No. 8436, as amended.
the armed forces, and officers, and employees in government- A close reading of the entire Republic Act No. 9369, which amended Republic Act No.
owned or-controlled corporations, shall be considered ipso
factor resigned from his/her office and must vacate the same at the 8436, would readily reveal that that it did not contain an express repeal of Section 80
start of the day of the filing of his/her certification of of the Omnibus Election Code. An express repeal is one wherein a statute declares,
candidacy. (Emphases ours.)
usually in its repealing clause, that a particular and specific law, identified by its
In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended,
number or title, is repealed.[35] Absent this specific requirement, an express repeal
the Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not
may not be presumed.
be applied to the present case since, as the Court held in Lanot v. Commission on
Elections,[34] the election campaign or partisan activity, which constitute the
Although the title of Republic Act No. 9369 particularly mentioned the
prohibited premature campaigning, should be designed to promote the election or
amendment of Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:
defeat of a particular candidate or candidates. Under present election laws, while a
person may have filed his/her COC within the prescribed period for doing so, said An Act Amending Republic Act No. 8436, Entitled "An Act
Authorizing the Commission on Elections to Use an Automated
person shall not be considered a candidate until the start of the campaign
Election System x x x, Amending for the Purpose Batas Pambansa
period. Thus, prior to the start of the campaign period, there can be no election Blg. 881, As Amended x x x. (Emphasis ours.),
campaign or partisan political activity designed to promote the election or defeat of
a particular candidate to public office because there is no candidate to speak of. said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa
Blg. 881. Such fact is indeed very material. Repeal of a law means its complete
abrogation by the enactment of a subsequent statute, whereas the amendment of a
statute means an alteration in the law already existing, leaving some part of the
[36]
original still standing. Section 80 of the Omnibus Election Code is not even one of
the specific provisions of the said code that were expressly amended by Republic Act
No. 9369.
[37]
Additionally, Section 46, the repealing clause of Republic Act No. 9369, states that:
Sec. 46. Repealing Clause. All laws, presidential decrees, executive
orders, rules and regulations or parts thereof inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.
against the other. Such alacrity should be avoided. The wise policy is for the judge
to harmonize them if this is possible, bearing in mind that they are equally the
handiwork of the same legislature, and so give effect to both while at the same time
also according due respect to a coordinate department of the government. [40]
To our mind, there is no absolute and irreconcilable incompatibility between
Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus
Election Code, which defines the prohibited act of premature campaigning. It is
possible to harmonize and reconcile these two provisions and, thus, give effect to
both.
The following points are explanatory:

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which
First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly
predicates the intended repeal under the condition that a substantial conflict must
provides that [i]t shall be unlawful for any person, whether or not a voter or
be found in existing and prior acts. The failure to add a specific repealing clause
candidate, or for any party, or association of persons, to engage in an election
indicates that the intent was not to repeal any existing law, unless an irreconcilable
campaign or partisan political activity, except during the campaign period. Very
inconsistency and repugnancy exist in the terms of the new and old laws. This latter
simply, premature campaigning may be committed even by a person who is not a
situation falls under the category of an implied repeal.[38]
candidate.

Well-settled is the rule in statutory construction that implied repeals are

For this reason, the plain declaration in Lanot that [w]hat Section 80 of the Omnibus
disfavored. In order to effect a repeal by implication, the later statute must be so
Election Code prohibits is an election campaign or partisan political activity by a
irreconcilably inconsistent and repugnant with the existing law that they cannot be
candidate outside of the campaign period,[41] is clearly erroneous.
made to reconcile and stand together. The clearest case possible must be made
before the inference of implied repeal may be drawn, for inconsistency is never
Second, Section 79(b) of the Omnibus Election Code defines election campaign or
presumed. There must be a showing of repugnance clear and convincing in
partisan political activity in the following manner:
character. The language used in the later statute must be such as to render it
irreconcilable with what had been formerly enacted. An inconsistency that falls short SECTION 79. Definitions. - As used in this Code:

of that standard does not suffice.[39] xxxx

(b) The term "election campaign" or "partisan political

Courts of justice, when confronted with apparently conflicting statutes, should activity" refers to an act designed to promote the election or
endeavor to reconcile the same instead of declaring outright the invalidity of one as
 defeat of a particular candidate or candidates to a public office
withdraws his/her COC before the campaign period, then there is no point to view
which shall include:
his/her acts prior to said period as acts for the promotion of his/her election as a
(1) Forming organizations, associations, clubs,
candidate. In the latter case, there can be no premature campaigning as there is no
committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate, whose disqualification may be sought, to begin with.[42]
candidate;

(2) Holding political caucuses, conferences, meetings, Third, in connection with the preceding discussion, the line in Section 15 of Republic
rallies, parades, or other similar assemblies, for the purpose of Act No. 8436, as amended, which provides that any unlawful act or omission
soliciting votes and/or undertaking any campaign or propaganda
for or against a candidate; applicable to a candidate shall take effect only upon the start of the campaign period,
does not mean that the acts constituting premature campaigning can only be
(3) Making speeches, announcements or commentaries,
or holding interviews for or against the election of any candidate committed, for which the offender may be disqualified, during the campaign
for public office; period. Contrary to the pronouncement in the dissent, nowhere in the

(4) Publishing or distributing campaign literature or said proviso was it stated that campaigning before the start of the campaign period
materials designed to support or oppose the election of any is lawful, such that the offender may freely carry out the same with impunity.
candidate; or
As previously established, a person, after filing his/her COC but prior to his/her
(5) Directly or indirectly soliciting votes, pledges or becoming a candidate (thus, prior to the start of the campaign period), can
support for or against a candidate.
already commit the acts described under Section 79(b) of the Omnibus Election Code
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after
as election campaign or partisan political activity. However, only after said person
the filing of the COC but before the start of the campaign period, a person is not yet
officially becomes a candidate, at the beginning of the campaign period, can said acts
officially considered a candidate. Nevertheless, a person, upon the filing of his/her
be given effect as premature campaigning under Section 80 of the Omnibus Election
COC, already explicitly declares his/her intention to run as a candidate in the coming
Code. Only after said person officially becomes a candidate, at the start of the
elections. The commission by such a person of any of the acts enumerated under
campaign period, can his/her disqualification be sought for acts constituting
Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making
premature campaigning. Obviously, it is only at the start of the campaign period,
speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of
when the person officially becomes a candidate, that the undue and iniquitous
promoting his/her intended candidacy.
advantages of his/her prior acts, constituting premature campaigning, shall accrue
to his/her benefit.Compared to the other candidates who are only about to begin
When the campaign period starts and said person proceeds with his/her
their election campaign, a candidate who had previously engaged in premature
candidacy, his/her intent turning into actuality, we can already consider his/her acts,
campaigning already enjoys an unfair headstart in promoting his/her candidacy.
after the filing of his/her COC and prior to the campaign period, as the promotion of
his/her election as a candidate, hence, constituting premature campaigning, for
As can be gleaned from the foregoing disquisition, harmony in the provisions of
which he/she may be disqualified. Also, conversely, if said person, for any reason,
Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic
Act No. 8436, as amended, is not only very possible, but in fact desirable, necessary
and consistent with the legislative intent and policy of the law.
The laudable and exemplary intention behind the prohibition against premature
[43]
campaigning, as declared in Chavez v. Commission on Elections, is to level the
playing field for candidates of public office, to equalize the situation between the
popular or rich candidates, on one hand, and lesser-known or poorer candidates, on
the other, by preventing the former from enjoying undue advantage in exposure and
publicity on account of their resources and popularity. The intention for prohibiting
premature campaigning, as explained in Chavez, could not have been significantly
altered or affected by Republic Act No. 8436, as amended by Republic Act No. 9369,
the avowed purpose of which is to carry-on the automation of the election
system. Whether the election would be held under the manual or the automated
system, the need for prohibiting premature campaigning to level the playing field
between the popular or rich candidates, on one hand, and the lesser-known or
poorer candidates, on the other, by allowing them to campaign only within the
same limited period remains.
We cannot stress strongly enough that premature campaigning is a pernicious act
that is continuously threatening to undermine the conduct of fair and credible
elections in our country, no matter how great or small the acts constituting the same
are. The choice as to who among the candidates will the voting public bestow the
privilege of holding public office should not be swayed by the shrewd conduct,
verging on bad faith, of some individuals who are able to spend resources to promote
their candidacies in advance of the period slated for campaign activities.
[44]
Verily, the consequences provided for in Section 68 of the Omnibus Election Code
for the commission of the prohibited act of premature campaigning are severe: the
candidate who is declared guilty of committing the offense shall be disqualified from
continuing as a candidate, or, if he/she has been elected, from holding office. Not to
mention that said candidate also faces criminal prosecution for an election offense
under Section 262 of the same Code.
The Dissenting Opinion, therefore, should not be too quick to pronounce
the ineffectiveness or repeal of Section 80 of the Omnibus Election Code just
because of a change in the meaning of candidate by Section 15 of Republic Act No.
8436, as amended, primarily, for administrative purposes. An interpretation should
be avoided under which a statute or provision being construed is defeated, or as
otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or
rendered insignificant, meaningless, inoperative, or nugatory.[45] Indeed, not only will
the prohibited act of premature campaigning be officially decriminalized, the value
and significance of having a campaign period before the conduct of elections would
also be utterly negated. Any unscrupulous individual with the deepest of campaign
war chests could then afford to spend his/her resources to promote his/her
candidacy well ahead of everyone else. Such is the very evil that the law seeks to
prevent. Our lawmakers could not have intended to cause such an absurd situation.
The Dissenting Opinion attempts to brush aside our preceding arguments by
contending that there is no room for statutory construction in the present case
since Section 15 of Republic Act No. 8436,[46] as amended by Section 13 of Republic
Act No. 9369,[47] is crystal clear in its meaning. We disagree. There would only be no
need for statutory construction if there is a provision in Republic Act No. 8436 or
Republic Act No. 9369 that explicitly states that there shall be no more premature
campaigning. But absent the same, our position herein, as well as that of the
Dissenting Opinion, necessarily rest on our respective construction of the legal
provisions involved in this case.
Notably, while faulting us for resorting to statutory construction to resolve
the instant case, the Dissenting Opinion itself cites a rule of statutory construction,
particularly, that penal laws should be liberally construed in favor of the
offender. The Dissenting Opinion asserts that because of the third paragraph in
Section 15 of Republic Act No. 8436, as amended, the election offense described in
Section 80 of the Omnibus Election Code is practically impossible to commit at any
time and that this flaw in the law, which defines a criminal act, must be construed in
favor of Penera, the offender in the instant case.
The application of the above rule is uncalled for. It was acknowledged
[48]
in Lanot that a disqualification case has two aspects: one, electoral; the other,
criminal.[49] The instant case concerns only the electoral aspect of the disqualification
case. Any discussion herein on the matter of Peneras criminal liability for premature
campaigning would be nothing more than obiter dictum. More importantly, as
heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as
amended, did not expressly or even impliedly repeal Section 80 of the Omnibus
Election Code, and these two provisions, based on legislative intent and policy, can
be harmoniously interpreted and given effect. Thus, there is no flaw created in the
law, arising from Section 15 of Republic Act No. 8436, as amended, which needed to
be construed in Peneras favor.
The Dissenting Opinion further expresses the fear that pursuant to our theory, all the
politicians with infomercials prior to the filing of their COCs would be subject to
disqualification, and this would involve practically all the prospective presidential
candidates who are now leading in the surveys.
This fear is utterly unfounded. It is the filing by the person of his/her COC
through which he/she explicitly declares his/her intention to run as a candidate in
the coming elections. It is such declaration which would color the subsequent acts of
said person to be election campaigning or partisan political activities as described
under Section 79(b) of the Omnibus Election Code. It bears to point out that, at this
point, no politician has yet submitted his/her COC. Also, the plain solution to this
rather misplaced apprehension is for the politicians themselves to adhere to the
letter and intent of the law and keep within the bounds of fair play in the pursuit of
their candidacies. This would mean that after filing their COCs, the prudent and
proper course for them to take is to wait for the designated start of the campaign
period before they commence their election campaign or partisan political
activities. Indeed, such is the only way for them to avoid disqualification on the
ground of premature campaigning. It is not for us to carve out exceptions to the law,
much more to decree away the repeal thereof, in order to accommodate any class of
individuals, where no such exception or repeal is warranted.
Lastly, as we have observed at the beginning, Peneras Petition is essentially grounded
on questions of fact. Peneras defense against her disqualification, before the
COMELEC and this Court, rests on the arguments that she and her partymates did not
actually hold a motorcade; that their supporters spontaneously accompanied Penera
and the other candidates from her political party when they filed their certificates of
candidacy; that the alleged motorcade was actually the dispersal of the supporters
of Penera and the other candidates from her party as said supporters were dropped
off at their respective barangays; and that Andanar was not able to present
competent, admissible, and substantial evidence to prove that Penera committed
premature campaigning. Penera herself never raised the argument that she can no
longer be disqualified for premature campaigning under Section 80, in relation to
Section 68, of the Omnibus Election Code, since the said provisions have already
been, in the words of the Dissenting Opinion, rendered inapplicable, repealed, and
done away with by Section 15 of Republic Act No. 8436, as amended. This legal
argument was wholly raised by the Dissenting Opinion.
As a rule, a party who deliberately adopts a certain theory upon which the case is
tried and decided by the lower court will not be permitted to change theory on
appeal. Points of law, theories, issues, and arguments not brought to the attention
of the lower court need not be, and ordinarily will not be, considered by a reviewing

court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule.[50] If we do not allow and consider
the change in theory of a case by a party on appeal, should we not also refrain
from motu proprio adopting a theory which none of the parties even raised before
us?
Nonetheless, the questions of fact raised by Penera and questions of law raised by
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume
office, fails to qualify or is removed from office, voluntarily resigns,
or is otherwise permanently incapacitated to discharge the
functions of his office. (Emphases ours.)
Considering Peneras disqualification from holding office as Mayor of Sta.

the Dissenting Opinion must all be resolved against Penera. Penera should be Monica, the proclaimed Vice-Mayor shall then succeed as Mayor.

disqualified from holding office as Mayor of Sta. Monica for having committed
premature campaigning when, right after she filed her COC, but still a day before the WHEREFORE, premises considered, the instant Petition for Certiorari is

start of the campaign period, she took part in a motorcade, which consisted of two hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the

jeepneys and ten motorcycles laden with multi-colored balloons that went around COMELEC Second Division and en banc, respectively, in SPA No. 07-224 are

several barangays of Sta. Monica, and gave away candies to the crowd. hereby AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera
from running for the office of Mayor of Sta. Monica, Surigao del Norte, and the

Succession resulting permanent vacancy therein, it is hereby DECLARED that the proclaimed
Vice-Mayor is the rightful successor to said office. The Temporary Restraining Order

Despite the disqualification of Penera, we cannot grant Andanars prayer to issued on 4 March 2008 is hereby ORDERED lifted. Costs against the petitioner.

be allowed to assume the position of Mayor of Sta. Monica. The well-established

SO ORDERED.
principle is that the ineligibility of a candidate receiving majority votes does not
entitle the candidate receiving the next highest number of votes to be declared
elected.[51]

In this case, the rules on succession under the Local Government Code shall apply, to
wit:

SECTION 44. Permanent Vacancies in the Offices of the Governor,

Vice-Governor, Mayor, and Vice-Mayor. If a permanent vacancy
occurs in the office of the xxx mayor, the x x x vice-mayor
concerned shall become the x x x mayor.

xxxx
G.R. No. 181613 | November 25, 2009
ROSALINDA A. PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s
Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated
30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007
of the COMELEC Second Division. The Decision disqualified Penera from running for
the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-
Mayor should succeed Penera.
In support of her motion for reconsideration, Penera submits the following
arguments:
1. Penera was not yet a candidate at the time of the incident under Section
11 of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of the
Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification
and has consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same
as admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person
aspiring for or seeking an elective public office, who has filed a certificate of
candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person who files his
certificate of candidacy within [the period for filing] shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states
that "unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period." These two provisions determine
the resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who
filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent
turning into actuality, we can already consider his/her acts, after the filing of his/her
COC and prior to the campaign period, as the promotion of his/her election as a
candidate, hence, constituting premature campaigning, for which he/she may be
disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning
after the filing of the certificate of candidacy but even before the start of the
campaign period. From the filing of the certificate of candidacy, even long before
the start of the campaign period, the Decision considers the partisan political acts of
a person so filing a certificate of candidacy "as the promotion of his/her election as
a candidate." Thus, such person can be disqualified for premature campaigning for
acts done before the start of the campaign period. In short, the Decision considers a
person who files a certificate of candidacy already a "candidate" even before the
start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who files a
certificate of candidacy is not a candidate until the start of the campaign period.
In Lanot, this Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election
Code are: (1) a person engages in an election campaign or partisan political activity;
(2) the act is designed to promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public
office. Unless one has filed his certificate of candidacy, he is not a "candidate." The
third element requires that the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on
the last day, which under Section 75 of the Omnibus Election Code is the day before
the start of the campaign period, then no one can be prosecuted for violation of
Section 80 for acts done prior to such last day. Before such last day, there is no
"particular candidate or candidates" to campaign for or against. On the day
immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done "outside" the campaign
period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80
may only apply to acts done on such last day, which is before the start of the
campaign period and after at least one candidate has filed his certificate of
candidacy. This is perhaps the reason why those running for elective public office
usually file their certificates of candidacy on the last day or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political
activities were committed outside of the campaign period. The only question is
whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period
on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline
was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
question is: did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January 2004 immediately
liable for violation of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or
the propositions to be voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged alphabetically by surname
and uniformly printed using the same type size. A fixed space where the chairman
of the Board of Election Inspectors shall affix his/her signature to authenticate the
official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/ manifestation to participate in the election shall not be later than one
hundred twenty (120) days before the elections: Provided, That, any elective
official, whether national or local, running for any office other than the one which
he/she is holding in a permanent capacity, except for president and vice-president,
shall be deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the start of the aforesaid
campaign period: Provided, finally, That, for purposes of the May 11, 1998
elections, the deadline for filing of the certificate of candidacy for the positions of
President, Vice-President, Senators and candidates under the party-list system as
well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the
Bangko Sentral ng Pilipinas at the price comparable with that of private printers
under proper security measures which the Commission shall adopt. The
Commission may contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens’ arms of the
Commission may assign watchers in the printing, storage and distribution of official
ballots.
To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the serial number on the ballot stub shall be printed in magnetic ink
that shall be easily detectable by inexpensive hardware and shall be impossible to
reproduce on a photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are provided on the
ballot.
The official ballots shall be printed and distributed to each city/municipality at the
rate of one (1) ballot for every registered voter with a provision of additional four
(4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of
candidacy is to give ample time for the printing of official ballots. This is clear from
the following deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the
same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the
present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s
already a candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet
began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the
certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
certificate of candidacy will not result in that official vacating his position, we can
also provide that insofar he is concerned, election period or his being a candidate
will not yet commence. Because here, the reason why we are doing an early filing is
to afford enough time to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the
House Panel will withdraw its proposal and will agree to the 120-day period
provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan
acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is
just to afford the Comelec enough time to print the ballots, this provision does not
intend to change the campaign periods as presently, or rather election periods as
presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other
prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no
conflict anymore because we are talking about the 120-day period before election
as the last day of filing a certificate of candidacy, election period starts 120 days
also. So that is election period already. But he will still not be considered as a
candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of
official ballots, Eusebio filed his certificate of candidacy on 29 December 2003.
Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a "candidate" for
purposes other than the printing of ballots. This legislative intent prevents the
immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to RA 8436 and that one who
files to meet the early deadline "will still not be considered as a
candidate."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not
a candidate until the start of the campaign period. This ground was based on the
deliberations of the legislators who explained the intent of the provisions of RA
8436, which laid the legal framework for an automated election system. There was
no express provision in the original RA 8436 stating that one who files a certificate
of candidacy is not a candidate until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the
Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of
Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x fixed
by existing law" prior to RA 8436 and that one who files to meet the early deadline
"will still not be considered as a candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the
early deadline required by the automated election system would be disqualified or
penalized for any partisan political act done before the start of the campaign
period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into
the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period shall only be
considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign period:
Provided, finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the
second sentence of the third paragraph of the amended Section 15 of RA 8436,
which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this
second sentence, because to reverse Lanot would mean repealing this second
sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second
sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is
unconstitutional. In fact, the Decision considers the entire Section 15 good law.
Thus, the Decision is self-contradictory — reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot doctrine. In so
doing, the Decision is irreconcilably in conflict with the clear intent and letter of the
second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third
paragraph of Section 15 of RA 8436. The original provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period x x x. (Emphasis
supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive
that election offenses can be committed by a candidate "only" upon the start of the
campaign period. This clearly means that before the start of the campaign period,
such election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read
together, these provisions of law do not consider Penera a candidate for purposes
other than the printing of ballots, until the start of the campaign period. There is
absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code
should be read together with the amended Section 15 of RA 8436. A "‘candidate’
refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party,
aggroupment or coalition of parties." However, it is no longer enough to merely file
a certificate of candidacy for a person to be considered a candidate because "any
person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of candidacy on any
day within the prescribed period for filing a certificate of candidacy yet that person
shall be considered a candidate, for purposes of determining one’s possible
violations of election laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to promote the election
or defeat of a particular candidate or candidates to public office simply because
there is no "candidate" to speak of prior to the start of the campaign period.
Therefore, despite the filing of her certificate of candidacy, the law does not
consider Penera a candidate at the time of the questioned motorcade which was
conducted a day before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12
May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was
thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29
March 2007, the law still did not consider Penera a candidate for purposes other
than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the
date when she became a "candidate," even if constituting election campaigning or
partisan political activities, are not punishable under Section 80 of the Omnibus
Election Code. Such acts are within the realm of a citizen’s protected freedom of
expression. Acts committed by Penera within the campaign period are not covered
by Section 80 as Section 80 punishes only acts outside the campaign period. 5
The assailed Decision gives a specious reason in explaining away the first proviso in
the third paragraph, the amended Section 15 of RA 8436 that election offenses
applicable to candidates take effect only upon the start of the campaign period. The
Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides
that "any unlawful act or omission applicable to a candidate shall take effect only
upon the start of the campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the
dissent, nowhere in said proviso was it stated that campaigning before the start of
the campaign period is lawful, such that the offender may freely carry out the same
with impunity.
As previously established, a person, after filing his/her COC but prior to his/her
becoming a candidate (thus, prior to the start of the campaign period), can already
commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person
officially becomes a candidate, at the beginning of the campaign period, can said
acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of
the campaign period, can his/her disqualification be sought for acts constituting
premature campaigning. Obviously, it is only at the start of the campaign period,
when the person officially becomes a candidate, that the undue and iniquitous
advantages of his/her prior acts, constituting premature campaigning, shall accrue
to his/her benefit. Compared to the other candidates who are only about to begin
their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her
candidacy.6(Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful
by law. This is specially true to expression or speech, which Congress cannot outlaw
except on very narrow grounds involving clear, present and imminent danger to the
State. The mere fact that the law does not declare an act unlawful ipso facto means
that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of
RA 8436, as amended by RA 9369, that political partisan activities before the start
of the campaign period are lawful. It is sufficient for Congress to state that "any
unlawful act or omission applicable to a candidate shall take effect only upon the
start of the campaign period." The only inescapable and logical result is that the
same acts, if done before the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense
only for acts done during the campaign period, not before. The law is clear as
daylight — any election offense that may be committed by a candidate under any
election law cannot be committed before the start of the campaign period. In ruling
that Penera is liable for premature campaigning for partisan political acts before the
start of the campaigning, the assailed Decision ignores the clear and express
provision of the law.
The Decision rationalizes that a candidate who commits premature campaigning
can be disqualified or prosecuted only after the start of the campaign period. This is
not what the law says. What the law says is "any unlawful act or omission applicable
to a candidate shall take effect only upon the start of the campaign period." The
plain meaning of this provision is that the effective date when partisan political acts
become unlawful as to a candidate is when the campaign period starts. Before the
start of the campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts
done by a candidate before the campaign period are unlawful, but may be
prosecuted only upon the start of the campaign period. Neither does the law state
that partisan political acts done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the start of the campaign period.
This is clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and
speech, would be void for vagueness.
Congress has laid down the law — a candidate is liable for election offenses only
upon the start of the campaign period. This Court has no power to ignore the clear
and express mandate of the law that "any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the start
of the campaign period for which he filed his certificate of candidacy." Neither can
this Court turn a blind eye to the express and clear language of the law that "any
unlawful act or omission applicable to a candidate shall take effect only upon the
start of the campaign period."
The forum for examining the wisdom of the law, and enacting remedial measures, is
not this Court but the Legislature. This Court has no recourse but to apply a law that
is as clear, concise and express as the second sentence, and its immediately
succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as
amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613
promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007
and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc,
respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.
SO ORDERED.
G.R. No. L-13954 | August 12, 1959
GENARO GERONA, ET AL., petitioners-appellants,
vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.
MONTEMAYOR, J.:
Petitioners are Appealing the decision of the Court of First Instance of Masbate
dismissing their complaint. Acting upon the "Urgent Motion for Writ of Preliminary
Injunction" filed on behalf of petitioners of December 12, 1958, and without
objection on the part of the Solicitor General, by resolution of this Court of December
16, we issued the corresponding writ of preliminary injunction restraining
respondents from excluding or banning petitioners-appellants, their children and all
other of Jehovah's Witnesses for whom this action has been brought, from admission
to public schools, particularly the Buenavista Community School, solely on account
of their refusal to salute the flag or preventing their return to school should they have
already been banned, until further orders from this Court.
The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was
approved and went into effect. Acting upon section 2 of said Act authorizing and
directing the Secretary of Education to issue or cause to be issued rules and
regulations for the proper conduct of the flag ceremony, said Secretary issued
Department Order No. 8, series of 1955 on July 21, 1955 which Department Order
quoting Republic Act No. 1265 in its entirety, we reproduce below for purpose of
reference:
"Republic of the Philippines
Department of Education
Office of the Secretary
Manila
Department Order
No. 8, s. 1955
July 21, 1955
COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE
SCHOOLS
To the Director of Public Schools and the Director of Private Schools:
1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag
Ceremony Compulsory in all Educational Institutions," which is self-
explanatory.
SECTION 1. All educational institutions henceforth observe daily
flag ceremony, which shall be simple and dignified and shall include
the playing or singing of the Philippine National Anthem.
SECTION 2. The Secretary of Education is hereby authorized and
directed to issue or cause to be issued rules and regulations for the
proper conduct of the flag ceremony herein provided.
SECTION 3. Failure of refusal to observe the flag ceremony provided
by this Act and in accordance with rules and regulations issued by
the Secretary of Education, after proper notice and hearing, shall
subject the educational institution concerned and its head to public
censure as an administrative punishment which shall be published
at least once in a newspaper of general circulation.
In case of failure to observe for the second time the flag ceremony provided
by this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private
educational institution responsible for such failure.
SECTION 4. This Act shall take effect upon its approval.
Approved, June 11, 1955.
2. As provided in Section 2 of the Act, the rules and regulations governing
the proper conduct of the required flag ceremony, given in the in closure to
this Order, are hereby promulgated. These rules and regulations should be
made known to all teachers and school officials, public and private. The
patriotic objective or significance of the Act should be explained to all pupils
and students in the schools and to all communities through the purok
organizations and community assemblies.
(Sgd.) G. HERNANDEZ, JR.
Secretary of Education
Incl.:
As stated
 (Inclosure of Department order No. 8, s. 1955)
RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL
EDUCATIONAL INSTITUTIONS
1. The Filipino Flag shall be displayed by all educational institutions, public
and private, every school day throughout the year. It shall be raised at
sunrise and lowered at sunset. The flag staff must be straight, slightly and
gently tapering at the end, and of such height as would give the Flag a
commanding position in front of the building or within the compound.
2. Every public and private educational institution shall hold a flag-raising
ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day.
The flag-raising ceremony in the morning shall be conducted in the following
manner:
a. Pupils and teachers or students and faculty members who are in school
and its premises shall assemble in formation facing the flag. At command,
books shall be put away or held in the left hand and everybody shall come
to attention. Those with hats shall uncover. No one shall enter or leave the
school grounds during the ceremony.
b. The assembly shall sing the Philippine National Anthem accompanied by
the school band or without the accompaniment if it has none; or the anthem
may be played by the school band alone. At the first note of the Anthem,
the flag shall be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and men with
hats shall salute by placing that hat over the heart. Those without hats may
stand with their arms and hands downed and straight at the sides. Those in
military or Boy Scout uniform shall give the salute prescribed by their
regulations. The salute shall be started as the Flag rises, and completed upon
last note of the anthem.
c. Immediately following the singing of the Anthem, the assembly shall recite
in unison of following patriotic pledge (English or vernacular version 0, which
may bring the ceremony to a close. This is required of all public schools and
of private schools which are intended for Filipino students or whose
population is predominantly Filipino.
ENGLISH VERSION
I Love the Philippines.
It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.
3. The retreat shall be observed as follows:
a. Teachers and pupils or faculty members and students whose classes and
after the last school period in the afternoon before sun down shall assemble
facing the flag. At command, the Philippine National Anthem shall be sung
with accompaniment of the school band. If the school has no band, the
assembly will only sing the Anthem. Boys who have been taking part in
preparatory military training or Boy Scout activities shall attend the retreat
in formation and execute the salute prescribed for them. Others shall
execute the same salute and observe the same deportment as required of
them in the flag-raising ceremony. The flag should be lowered slowly so that
it will be in the hands of the color detail at the sound of the last note of the
Anthem.
b. If the school so prefers, it may have its bugle corp play "To the Colors",
instead of the singing of the National Anthem, for the retreat. At the sound
of the first note, the assembly shall stand at attention facing the flag and
observe the same deportment as required in the flag-raising ceremony. Or,
it may have its bugle corp play "To the Colors" and at the sound of the first
note everybody within hearing distance shall stand at attention, face the
flag, and observe the same deportment as required in the flag-raising
ceremony.
4. The flag should be handled reverently in raising or lowering it and not
allowed to touch the ground. This can be insured by having one pupil hold
the flag while another pupil fastening it to or unfasten it from the halyard.
5. To display the National Flag at half-mast when necessary, it must be
hoisted to full-mast, allowing it to fly there for a moment, and then brought
down to half-mast. To lower the flag, it must again be hoisted to full-mast
before bringing it down."
In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July
30, 1955 addressed to Division Superintendents of Schools, enclosing a copy of
Department Order No. 8, series of 1955 and enjoining strict compliance therewith.
It would appear that pursuant to the Department Order in question, the flag
ceremony contemplated therein was held daily in every school, public and private.
Petitioners' children attending the Buenavista Community School, Uson, Masbate,
refused to salute the flag, sing the national anthem and recite the patriotic pledge
contrary to the requirement of Department Order No. 8; as a result they were
expelled from school sometime in September, 1955. It is said that other children
similarly situated who refused or failed to comply with the requirement about
saluting the flag are under threats of being also expelled from all public schools in the
Philippines.
Petitioners thru counsel wrote to the Secretary of Education petitioning that in the
implementation of this flag ceremony, they and their children attending school be
allowed to remain silent and stand at attention with their arms and hands down and
straight at the sides and that they be exempted from executing the formal salute,
singing of the National Anthem and the reciting of the patriotic pledge, giving their
reason for the same. On December 16, 1955 the Secretary of Education wrote to
counsel for petitioner denying the petition, making it clear that the denial was the
final and absolute stand of the Department of Education on the matter and that
counsel may thereafter feel free to seek a judicial determination of the
constitutionality or interpretation of Republic Act No. 1265 as construed and applied
to Jehovah's Witnesses. The letter also informed petitioners' counsel that with
reference to his letter of December 1, 1955 relative to the request for reinstatement
of petitioners' children who had been expelled from school for non-compliance with
Department Order No. 8, no favorable action could be taken thereon. So, on March
27, 1957 petitioners commenced the present action asking that a writ of preliminary
injunction issue to restrain the Secretary of Education and the Director of Public
Schools from enforcing Department Order No. 8 "as applied to petitioners and all
others of Jehovah's Witnesses for whom this action is brought and to restrain them
from excluding from the public schools the children of the petitioners on account of
their refusal to execute a formal salute to the flag, sing the national anthem and
recite the patriotic pledge, and that after hearing, the trial court declare Department
Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary
injunction prayed for be made permanent.
Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an
unincorporated body teaching that the obligation imposed by law of God is superior
to that of laws enacted by the State. Their religious beliefs include a literal version of
Exodus, Chapter 20, verses 4 and 5, which say: "Thou shalt not make unto thee any
graven image, or any likeness of anything that is in heaven above, or that is in the
earth beneath, or that is in the water under the earth; thou shalt not bow down
thyself to them, nor serve them." They consider that the flag is an "image within this
command. For this reason they refuse to salute it.
To further make clear the stand of petitioners as to the relative position and priority
of religious teaching on the one hand and laws promulgated by the State on the
other, we quote from appellant's brief on page 50 thereof:
In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907),
the United States Supreme Court held that the flag `is an emblem of National
sovereignty,
To many persons the saluting of a national flag means nothing. To a sincere
person who believed in God and the Bible as his Word, and who is in a
covenant with Almighty God to do his will exclusively, it means much. To
such person "sovereignty" means the supreme authority or power. Many
believe that "the higher powers," mentioned in the Bible at Romans 13:1,
means the "sovereign state"; but to the Christian this means Jehovah God
and his son, Christ Jesus, Jehovah's anointed King. They, Father and Son are
the higher powers, to whom all must be subject and joyfully obey. (Emphasis
supplied)
The question involved in this appeal is a highly important one. We are called upon to
determine the right of a citizen as guaranteed by the Constitution about freedom of
religious belief and the right to practice it as against the power and authority of the
State to limit or restrain the same. Our task is lessened by the fact that petitioners do
not challenge the legality or constitutionality of Republic Act 1265. All that they
question is the legality or constitutionality of Department Order No. 8, series of 1955
of the Department of Education implementing said Republic Act.
The realm of belief and creed is infinitive and limitless bounded only by one's
imagination and though. 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 between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and
with the law, then the former must yield and give way to the latter. The Government
steps in and either restrains said exercise or even prosecutes the one exercising it.
One may believe in polygamy because it is permitted by his religious, but the moment
he translates said religious belief into an overt act, such as engaging or practising
plural marriages, he may be prosecuted for bigamy and he may not plead or involve
his religious belief as a defense or as matter of exemption from the operation of the
law.
In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the
validity of a law prohibiting and punishing polygamy even as against the claim of
religious belief of the Mormons. Said the Court:
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be
allowed. Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself. Government could exist only in name
under such circumstance. (emphasis supplied)
Again, one may not believe in the payment of taxes because he may claim that
according to his religious belief, the payment of taxes means service to one other
than God. As long as he confines himself to mere belief, well and good. But when he
puts said belief into practice and he actually refuses to pay taxes on his property or
on his business, then the States steps in, compels payment, and enforces it either by
court action or levy and distraint.
One of the important questions to determine here is the true meaning and
significance of the Filipino flag. Petitioners believe and maintain that it is an image
and therefore to salute the same is to go against their religious belief. "Thou shalt not
make unto thee any graven . . . thou shalt not bow down thyself to them or serve
them." They also claim that the flag salute is a religious ceremony, participation in
which is forbidden by their religious belief. We disagree. Appellants themselves (page
51 of their brief) concede that the flag is a symbol of the State. They give the meaning
of the word "image" on page 51 of their brief as follows:
Under the word "image" this comment is given by Webster: "Image, in
modern usage, commonly suggests religious veneration." (Emphasis
supplied)
The flag is not an image but a symbol of the Republic of the Philippines, an emblem
of national sovereignty, of national unity and cohesion and of freedom and liberty
which it and the Constitution guarantee and protect. Considering the complete
separation of church and state in our system of governments, the flag is utterly
devoid of any religious significance. Saluting the flag consequently does not involve
any religious ceremony. The flag salute, particularly the recital of the pledge of loyalty
is no more a religious ceremony than the taking of an oath of office by a public official
or by a candidate for admission to the bar. In said oath, taken while his right hand is
raised, he swears allegiance to the Republic of the Philippines, promise to defend the
Constitution and even invokes the help of God; and it is to be doubted whether a
member of Jehovah's Witness who is a candidate for admission to the Philippine Bar
would object to taking the oath on the ground that is religious ceremony.
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a a religious group or sect,
much less to a follower of said group or sect; otherwise, there would be confusion
and misunderstanding for there might be as many interpretations and meaning to be
given to a certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all sincerity and
good faith, may want to give to such ritual or ceremony.
We understand that petitioners, during the flag ceremony, are willing to remain silent
and stand at attention with their arms and hands down straight at the sides, and they
agree that boys, members of Jehovah's Witness who have been taking part in military
training or Boy Scout activities, and are in uniform, may execute the salute to the flag
prescribed by the Circular for them. So, the requirement contained in Department
Order No. 8 that during the flag ceremony those without hats may stand with their
arms and hands down and straight at the sides, including the formal salute by boys
in military and boy Scout uniform, meets with the conformity of petitioners. Of
course, there is the other requirement that boys and men with hats shall salute the
flag by placing their hats over the heart, but petitioners and other members of the
Jehovah's Witness could well solve this requirements or avoid it by putting away their
hats just as pupils books, may put them away, at command (Rules and Regulations,
Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may be
reduced to their objection to singing the National Anthem and reciting the patriotic
pledge.
After a careful and conscientious examination of the patriotic pledge as reproduced
at the beginning of this decision, frankly we find nothing, absolutely nothing,
objectionable, even from the point of view of religious belief. The school child or
student is simply made to say that he loves the Philippines because it is the land of
his birth and the home of his people; that because it protects him, in return he will
heed the counsel of his parents, obey the rules and regulations of his school, perform
the duties of a patriotic and law-abiding citizen; and serve his country unselfishly and
faithly, and that he would be a true Filipino in thought, in word, and in deed. He is
not even made to pledge allegiance to the flag or to the Republic for which it stands.
So that even if we assume for a moment that the flag were an image, connoting
religious and veneration instead of a mere symbol of the State and of national unity,
the religious scruples of appellants against bowing to and venerating an image are
not interfered with or otherwise jeopardized.
And as to the singing of the National Anthem, which we reproduce below:
Land of the morning,
Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.
the same thing may be said; that it speaks only of love of country, of patriotism,
liberty and the glory of suffering and dying for it. It does not even speak of resorting
to force and engaging in military service or duty to defend the country, which service
might meet with objection on the part of conscientious objectors. Surely, petitioners
do not disclaim or disavow these noble and sacred feelings of patriotism, respect,
even veneration for the flag and love of coutnry for which the flag stands.
Men may differ and do differ on religous beliefs and creeds, government policies, the
wisdom and legality of laws, even the correctness of judicial decisions and decrees;
but in the field of love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in which they are
mutually and viatlly interested, for to them, they mean national existence and
survival as a nation or national extinction.
In enforcing the flag salute on the petitioners, there was absolutely no compulsion
involved, and for their failure or refusal to obey school regulations about the flag
salute they were not being persecuted. Neither were they being criminally
prosecuted under threat of penal sacntion. If they chose not to obey the flag salute
regulation, they merely lost the benefits of public education being maintained at the
expense of their fellow citizens, nothing more. According to a popular expression,
they could take it or leave it. Having elected not to comply with the regulations about
the flag salute, they forfeited their right to attend public schools.
In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite
similar to the present case, appellants therein were taxpayers and citizens of the
United States and of California. The University of California received endowment and
support from the State legislature under certain conditions such as that any resident
of California of the age of 14 years or upward of approved moral character shall have
the right to enter the University as a student and receive instructions therein. The
University as part of its cirriculum and instruction required military science and tactics
in the Reserve Officers Training Corps. Appellants conformed to all requirements of
the University except taking the course in military science and tactics and for this the
regents of the University suspended them. Appellants were members of the
Methodist Espiscopal Church and of the Epworth League. For many years their
fathers have been ordained ministers of that church. They believed that war and
preparation for war is a violation of their religious belief. In other words, they were
conscientious objectors to war. They believed that war, training for war, and military
training were immoral, wrong and contrary to the letter and spirit of the teaching of
God and precepts of the Christian religion. They petitioned for exemption from the
military science and tactics course but the regents refused to make military training
optional or to exempt them and they were suspended. So they initiated court action
with a California Supreme Court to compel the regents of the University to admit
them. In that action they assailed the validity of the State law providing for military
training in the University. The petition was denied by the State Supreme Court. In
affirming the decision of the State Supreme Court, the Supreme Court of the United
States held that:
. . . California has not drafted or called them to attend the University. They
are seeking education offered by the State and at the same time insisting
that they be excluded from the prescribed course solely upon grounds of
their religious beliefs and consicientious objections to war, preparation for
war and military education. Taken on the basis of the facts alleged in the
petition, appellants' contentions amount to no more than an assertion that
the due process clause of the Fourtheenth Amendment as a safeguard of
liberty' confers the right to be students in the state university free from
obligation to take military training as one of the conditions of attendance.
Viewed in the light of our decisions that proposition must at once be put
aside as untenable . . .
In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a
later naturalization case, the applicant was unwilling, because of
conscientious objections, to take unqualifiedly the statutory oath of
allegiance which contains this statement: "That he will support and defend
the constitution and laws of the United States against all enemies, foreign
and domestic, and bear true faith and allegiance to the same." U.S.C. title 8,
Sec. 381. His petition stated that he was willing if necessary to take up arms
in defense of this country, "but I should want to be free to judge of the
necessity." In amplification he said: "I do not undertake to support "my
country, right or wrong" in any dispute which may arise, and I am not willing
to poromise beforehand, and without knowing the cause for which my
country may go to war, either that I will or that I will not "take up arms in
defense of this country," however "necessary" the war may seem to be to
the government of the day." The opinion of this court quotes from
petitioner's brief a statement to the effect that it is a fixed principle of our
Constitution, zealously guarded by our laws, that a citizen cannot be forced
and need not bear arms in a war if he has conscientious religious scruples
against doing so." And, referring to that part of the argument in behalf of
the applicant this court said (p. 623): "This, if it means what it seems to say,
is an astonishing statement. Of course, there is no such principle of the
Constitution, fixed or otherwise. The conscientious objector is relieved from
the obligation to bear arms in obedience to no constitutional provision,
express or implied; but because, and only because, it has accorded with the
policy of Congress thus to relieve him . . . The previlege of the native-born
conscientious objector to avoid bearing arms comes not from the
Constitution but from the acts of Congress. That body may grant or withhold
the exemption as in its wisdom it sees fit; and if it be withheld, the native-
born conscientious objector cannot successfully assert the privilege. No
other conclusion is compatible with the well-nigh limitless extent of the war
power as above illustrated, which include by necessary implication, the
power, inthe last extremity, to compel armed serviced of any citizen in the
land, without regard to his objections or his views in respect of the justice
or morality of the particular war or of war in general. In Jacobson v.
Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann. Cas,
765, this Court (upholding a state compulsory vaccination law) speaking of
the liberties guaranteed to the individual by the Fourteenth Amendment,
said: "... and yet he may be compelled, by force if need be, against his will
and without regard to his personal wishes or his pecuniary intersts, or even
his religious or political convictions, to take his place in the ranks of the army
of his country and risk the chance of being shot down in its defense.
And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case,
similar to that now before us, decided against the contention of a student in
the University of Maryland who on conscientious grounds objected to
military training there required. His appeal to this Court was dismissed for
the want of a substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54
S. Ct. 131.
Plainly there is no ground for the contention that the regents' order,
requiring able-bodied male students under the age of twenty-four as a
condition of their enrollment to take the prescribed instruction in military
science and tactics, transgresses any constitutional right asserted by these
appellants.
Mr. Justice Cardozo in his concurring opinion said:
I assume for present purposes that religious liberty protected by the First
Amendment against invasion by the nation is protected by the Fourteenth
Amendment against invasion by the states.
Accepting that premise, I cannot find in the respondents' ordinance an
obstruction by the state to "the free exercise" of religion as the phrase was
understood by the foundrs of hte nation, and by the generations that have
followed. Davis vs. Beasin, 133 U.S. 333, 342, 33 L. ed. 637, 10 s.Ct. 299.
There is no occasion at this time to mark the limits of governmental power
in the exaction of military service when the nation is at peace. The
petitioners have not been required to bear arms for any hostile purpose,
offensive or defensive, either now or in the future. They have not even been
required in any absolute or peremptory way to join courses of instruction
that will fit them to bear arms. If they elect to resort to an institution for
higher education maintained with the state's moneys, then they are
comanded to follow courses of instruction believed by the state to be vital
to its welfare. This may be condemned by some unwise or illiberal or unfair
when there is violence to conscientious scruples, either religious or merely
ethical. More must be shown to set the ordinance at naught. In
controversies of this order courts do not concern themselves with matters
of legislative policy, unrelated to privileges or liberties secured by the
organic law. The first Amendment, if it be read into the Fourteenth, makes
invalid any state law `respecting an establishment of religion or prohibiting
the free exercise thereof.' Instruction in military science is not instruction in
the practice or tenets of a religion. Neither directly nor indirectly is
government establishing a state religion when it insists upon such training.
Instruction in military science, unaccompanied here by any pledge of
military service, is not an interference by the state with the free exercise of
religion when the liberties of the constitution are read in the light of a
century and a half of history during days of peace and war . . .
 Manifestly a different doctrine would carry us to lengths that have never yet
been dreamed of. The conscientious objector, if his liberties were to be thus
extended, might refuse to contribute taxes in furtherance of a war, whether
for attack or for defense, or in furtherance of any other end, condemned by
his conscience as irreligious or immoral. The right of private judgment has
never yet been so exalted above the powers and the compulsion of the
agencies of government. One who is a martyr to a principle—which may turn
out in the end to be a delusion or an error—does not prove by his
martyrdom that he has kept within the law."
We are not unmindful of the decision of the United States Federal Supreme Court on
similar set of facts. In the case of Minersville School District vs. Gobitis, 310 U.S. 586,
84 L. ed. 1375, two Jehovah Witnesses children were expelled from the public school
of Minersville for refusing to salute the national flag in accordance with the
regulations poromulgated by the school board for the daily flag ceremony. Their
father Gobitsi on behalf of his two children and in his own behalf brought suit to
enjoin the school authorities from continuing to exact the execution of the flag
ceremony as a condition of his children's admittance in school. After trial, the District
Court gave him relief and this decree was affirmed by the Circuit Court of Appeals.
On appeal to the Federal Supreme Court, the decrees of both the District Court and
the Circuit Court of Appeals were reversed with the lone dissent of Chief Justice
Stone, on the ground that the requirement of participation of all pupils in the public
schools in the flag ceremony did not infringe the due process law and liberty
guaranteed by the Constitution, particularly the one referring to religious freedom
and belief. Three years later, that is, on June 14, 1943, the ruling laid down in the
Minersville School District vs. Gobitis case, was in the case of West Virginia State
Board of Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply divided
court, the majority opinion being penned by Mr. Justice Jackson in which Justice
Black, Douglas and Murphy concurred; while Mr. Justice Frankfurter who wrote the
opinion in the Gobitis case, filed a long dissenting opinion, and Justices Roberts and
Reed adhered to the views expressed in the Gobitis case.
Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case
nor desiring to criticize the doctrine of the West Virginia vs. Barnette case, frankly,
we are more inclined to favor the former as more in keeping with the spirit of our
Constitution and the government policy as laid down in Republic Act No. 1265 entitles
"An Act Making Flag Ceremony Compulsory In All Educational Institutions".
We cannot help thinking that one reason that may have possibly influenced the
decision in the West Virginia State Board of Education vs. Barnette case, was that the
children involved in said case and their parents found themselves in a serious
dilemma for refusing to salute the flag as required by the regulations of the School
Board. They were expelled by the School Board and their absence was considered
unlawful and because of the law of compulsory school atendance of all children of
school age, they were considered as truants and the school officials threatened to
send them to reformatories maintained for criminially inclinded juveniles. Parents of
such children have been prosecuted or were threatened with prosecution for cause
such as alleged delinquency and if convicted, were subject to fine not exceeding
$50.00 and a jail term not exceeding 30 days. That is why in the majority opinion it
was stated:
. . . The sole conflict is between authority and rights of the individual. The
state asserts power to conditions access to public education on making a
prescribed sign and profession and at the same time to coerce attendance
by punishing both parent and child . . .
Such a grave and embarrassing situation, however, does not obtain in the Philippines.
True, we have a law (Republic Act 896) requiring compulsory enrollment of children
of shcool age, but said law contains so many exceptions and exemptions that it can
be said that a child of school age is very seldom compelled to attend school, let alone
the fact that almost invariably, there is school crisis every year wherein the pupils
applying for admission in public schools could not be accommodated, and what is
equally important is that there is no punishment or penal sanction either for the pupil
who fail to attend school or is expelled for failure to comply with school regulations
such as the compulsory flag salute ceremony, or his parents.
In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two
years after the decision in the case of West Virginia, the Supreme Court of the United
States affirmed a decision of the Illinois Supreme Court refusing admission of
petitioner Clyde Wilson Summers to the Illinois Bar. Summers had complied with tall
the prerequisites to admission to the Bar of that state, but he was a conscientious
objector who did not believe in the use of force or war because of his religious belief.
He described this attitude of his as follows:
The so-called "misconduct" for which petitioner could be reproached for is
his taking the New Testament too seriously. Instead of merely reading or
preaching the Sermon on the Mount, he tries to practice it. The only fault of
the petitioner consists in his attempt to act as a good Christian in accordance
with his interpreation of the Bible, and according to the dictates of his
conscience. We respectfully submit that the profession of law does nt shut
its gates to persons who have qualified in all other respects even when they
follow in the footsteps of that Great Teacher of mankind who delivered the
Sermon on the Mount. We respectfully submit that under our Constitutional
guarantees even good Christians who have met all the requirements for the
admission to the bar may be admitted to practice law
The Constitution of Illinois required service in the militia in time of war of men of
petitioner's age group. The Federal Supreme Court defined the position of Summers
as a conscientious objector in the following words:
. . . without detailing petitioner's testimony before the Committee or his
subsequent statments in the record, his position may be compendiously
stated as one of non-violence. Petitioner will not serve in the armed forces.
While he recognizes a difference between the military and police forces, he
would not act in the latter to coerce threatened violations. Petitioner would
not use force to meet aggression against himself or his family, no matter
how aggravated or whether or not carrying a danger of bodily harm to
himself or others. He is a believer in passive resistance. We need to consider
only his attitude toward service in the armed forces.
It was not denied that Summers was unwilling to serve in the militia of Illinois because
of his religious belief. In affirming the decision of the Illinois Supreme Court excluding
Summers from the practice of law in that state, the Federal Supreme Court held that
the action of the State Supreme Court did not violate the principle of religious
freedom contained in the Constitution.
If a man lived, say on an island, alone and all by himself without neighbors, he would
normally have complete and absolute rights as to the way he lives, his religion,
incuding the manners he practices his religious beliefs. There would be no laws to
obey, no rules and regulations to follow. He would be subject only to Nature's
physical laws. But man iis gregarious by nature and instinct and he gravitates toward
community life, to receive and enjoy the benefits of society and of social and political
organization. The moment he does this and he becomes a member of a community
or nation, he has to give rights for the benefit of his fellow citizens and for the general
welfare, just as his fellow men and companions also agree to a limitation of their
rights in his favor. So, with his religion. He may retain retain his freedom or religious
belief, but as to practising the same, he would have to give up some of those practices
repugnant to the general welfare and subordinate them to the laws and sovereignty
of the State. In order words, the practice of religion or religious belief is subject to
reasonable and non-discrminatory laws and regulations by the state.
In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United
States Supreme Court affirmed a decision convicting Sarah Prince of a violation of the
Child Labor Law of Massachusetts. Mr. Justice Rutledge who wrote the opinion
tersely described the case thus:
The case brings for review another episode in the conflict between Jehovah's
Witneses and state authority. This time Sarah Prince appeals from
convictions for violating Massachusetts' child labor laws, by acts said to be
a rightful exercise of her religious convictions.
When the offenses where committed she was the aunt and custodian of
Betty M. Simmons, a girl nine years of age. . . . (Emphasis supplied)
The defendant in this case allowed Betty, under here legal cutody who was at the
same time niece, to distribute religious pamphlets intended to propagate the religion
of Johovah Wiitness. The question involved was whether or not the law in question
contravened the Fourtheenth Amendment by denying appellant freedom of religion
and denying to her the equal protection of the law. Defendant claimed that the child
was exercising her God given right and her constitutional right to preach the gospel
and that no preacher of God's commands shold be interfered with. She rested her
case squarely on freedom of religion. In affirming the judgment of conviction and
upholding the law as agains the claiim of relgion and the exercise of religious belief,
the court said:
. . . And neither rights of religion nor lights of parenthood are beyond
limitation. Acting to guard the general interest in youth's well-being, the
state as parens patriae may restrict the parent's control by requiring shcool
attendance, regulating or prohibiting the child's labor, and in many other
ways. Its authority is not nullified merely because the parent grounds his
claim to control the child's course of conduct on religion or conscience. Thus,
he cannot claim freedom from compulsory vaccination for the child more
than for himself on relgious grounds. The right to practice religion freely
does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death. . . . It is too late
now to doubt that legislation appropriately designed to reach such evils is
withinthe state's police power, whether against the parent's claim to control
of the child or one that religious scruples dictate contrary action.
Incidentally, it must be noted that this case was decided after that of West Virginia
vs. Barnette, supra.
In requiring school pupils to participate in the flag salute, the State thru the Secretary
of Education was not imposing a religion or religious belief or a religious test on said
students. It was merely enforcing a non-discriminatory school regulation applicable
to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State
was merely carrying out the duty imposed upon it by the Constitution which charges
it with supervision over and regulation of all educational institutions, to establish and
maintain a complete and adequate system of public education, and see to it that all
schools aim to develop among other things, civic conscience and teach the duties of
citizenship. (Art. XIV, section 5 of the Constitution). It does nothing more than try to
inculcate in the minds of the school population during the formative period of their
life, love of country and love of the flag, all of which make for united and patriotic
citizenry, so that later in after years they may be ready and willing to serve, fight,
even die for it. It is well known that whatever is taught to the youth during this period,
such as love of God, of parents, respect for elders, love of the truth, loyalty, honoring
one's word and respecting the rights of other, becomes a habit or second nature that
will remain with them always. School children of kingdoms and empires are taught
early to respect and love the king or the emperor for these rulers and sovereigns
symbolize the nation, and the children as future citizens or subjects will come to love
their country.
Petitioners do not question the right of public schools to conduct the flag salute
ceremony regularly but they do "question the attempt to compel conscientious
objectors guided by the word of God to salute the flag or participate in the ceremony
to specific commandment of Jehovah God. It is perfectly proper and lawful for one nt
bound by a covenant with Jehovah to salute the flag when that person desires to
salute it. It is entirely wrong to interfere with that right or prevent such one from
saluting the flag. Conversely, it is also true that it is wrong and illegal to compel one
who, for concience' sake, cannot participate in the ceremony." (p. 85, Appellant's
Brief)
The trouble with exempting petitioners from participation in the flag ceremony aside
from the fact that they have no valid right to such exemption is that the latter would
disrupt shcool discipline and demoralize the rest of the school population which by
far constitutes the great majority. If the children of Jehovah Witnesses are exempted,
then the other pupils, especially the young ones seeing no reason for such exemption,
would naturlly ask for the same privilege because they might want to do something
else such as play or study, instead of standing at attention saluting the flag and
singing the national anthem and reciting the patriotic pledge, all of which consume
considerable time; and if to avoid odions discrimination this exemption is extended
to others, then the flag ceremony would soon be a thing of the past or perhaps
conducted with very few participants, and the time will come when we would have
citizens untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic, even
tragic situation, and all because a small portion of the shcool population imposed its
will, demanded and was granted an exemption. In a way that might be regarded as
tyranny of the minority, and a small minority at that.
In a few cases, such exemptions in a limited way have been afforded members of a
religious group. Conscientious objectors in the United States who because of their
religion were unwilling to serve in the war particularly as regards actual fighting or
field duty, were allowed to do some work in relation to the war, but not involving
combat duty or the use of force. But that was by special legislation. If that is possible
here as regards exemption from participation in the flag ceremony, then petitioners
would have to look to the Legislature, not the courts for relief.
The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption form or non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent authority. As was said by Mr.
Justice Frankfurter in h is dissent in West Virginia vs. Barnette, supra:
The constitutional protection of religious freedom ... gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma. Religious loyalties may be exercised without hindrance from the
State, not the State may not exercise that which except by leave of religious
loyalties is within the domain of temporal power. Otherwise, each individual
could set up his own censor against obedience to laws conscientiously
deemed for the public good by those whose business it is to make laws.
(West Virginia State Board vs. Barnette, supra, at p. 653; emphasis supplied)
In conclusion we find and hold that the Filipino flag is not an image that requires
religious veneration; rather it is symbol of the Republic of the Philippines, of
sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is
nt a religious ceremony but an act and profession of love and allegiance and pledge
of loyalty to the fatherland which the flag stands for; that by authority of the
legislature, the Secretary of Education was duly authorized to promulgate
Department Order No. 8, series of 1955; that the requirement of observance of the
flag ceremony or salute provided for in said Department Order No. 8, does not violate
the Constitutional provision about freedom of religion and exercise of religion; that
compliance with the non-discriminatory and reasonable rules and regulations and
school disicipline, including observance of the flag ceremony is a prerequisite to
attendance in public schools; and that for failure and refusal to participate in the flag
ceremony, petitioners were properly excluded and dismissed from the public shcool
they were attending.
In view of the foregoing, the appealed decision is affirmed. The writ of preliminary
injunction heretofore issued is ordered dissolved. No costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador and Endencia, JJ., concur.
Separate Opinions
BARRERA, J., concurring:
I am in substantial accord with teh well-thought and well-expressed opinion of Mr.
Justice Montemayor.
As much reliacne has been place by appellants on the Barnette case decided by the
Supreme Court of the United States (West Virginia State Board of Education vs.
Barnette, 319 U.S. 624, 87 L. ed. 1628), two fundamental features distinguishing that
case from the one before us, bear some stressing.
The underlying and, I belive, compelling consideration that impelled the majority in
the Barnette case to overrule the Gobitis decision (Minersville School District vs.
Gobitis, 310 U.S. 586, 84 L. ed 1375) was the compulsory nature of the order of the
State Board of Education making non-compliance therewith virtually unlawful in the
sense that under the West Virginia Code, upon expulsion of the disobeying pupil, his
parents or guardian become liable to criminal prosecution 1 for such absence due to
expulsion and if convicted are subjected to fine not exceeding $50 and jail term not
exceeding thirty days.2 The delinquent pupil may be proceeded against and sent to
reformatories maintained for ciminally inclined juveniles.3 Hence, the Court treated
the case as one where "the sole conflict is between authority and rights of the
individual. The State asserts power to condition access to public education on making
a prescribed sign and profession, and at the same time to coerce attendance (in
school) by punishing both parent and child". As thus presented, really the conflict
there between authority and liberty become deeply sharpened and has attained the
proportion of repugnance to a degree that left no choice to the Court except to apply
the rationale of the grave-and-imminent-danger rule and to enjoin, under the
circumstances, the enforcement of the West Virginia School Regulation.
Here, what is required of all persons present during the flag ceremony is to stand at
attention while the flag is being raised and the National Anthem is being played or
sung. Boys and men with hats shall place the hat over the heart. Those without hats
may stand with their arms and hands down and straight at the sides. Those in military
or Boy Scout uniform shall give the salute prescribed by their regulations.
Appellants here have manifested through counsel, both in their brief and, I
understand, in the course of the oral argument, that they do not object to this
requirement of standing at attention with their arms and hands down and straight at
the sides. Consequently, there seems to be no irreconciliable fundamental conflict,
except perhaps as regards the singing of the National Anthem and the recital
(unaccompanied by any particular physical position) of the patriotic pledge near the
close of the ceremony. As to the import of the National Anthem and the Patriotic
Pledge, I can add nothing to the very sober and well-considered opinion of Justice
Montemayor.
As I see the issuance, disentangled as it should and could be from the stress and strain
of counsels' doctrinal discussion and argumentation on the fundamentals of the
freedom of religion about which there could be no serious disagreement, and if
viewed and interpreted rationally — in a spirit of harmony, goodwill and in keeping
with an appropriate sense of nationalism — I find no reasonable consideration
making the flag ceremony executed in the manner prescribed by the questioned
Department order and regulation, clearly repugnant to the Constitution.

Fortunately the problem the instant case presents to us is unaccompanied by such

dire consequences. Non-compliance with our prescribed flag ceremony does not
result in criminal prosecution either of the pupil or of the parent. All that the unwilling
pupil suffers is inability to continue his studies in a public school. If this and nothing
else is the consequence, as it presently appears to be the complaint of appellants in
this case, then I perceive no clear offense is done to the Constitution.

One other significant distinction between the Barnette case and the one before us is
the substnatial difference in the manner the flag salute is to be executed under the
two laws, and of course, the varying reaction and attitude taken by the Jehovah's
Witnesses in relation thereto. In West Virginia, the law requires the "Stiff-arm" salute,
the saluter to keep the right hand raised with palm turned up while the following is
repeated: "I pledge allegiance to the Flag of the United States of America and to the
Republic for which it stands; one Nations, indivisible with liberty and justice for all."
The Jehovah's Witnesses considered this posture of raising the hand at the same time
reciting the pledge as an act of obeisance contrary to their religious beliefs.
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG, et al., petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.
GRIÑO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school children
who are members or a religious sect known as Jehovah's Witnesses may be expelled
from school (both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by a band) or singing
the Philippine national anthem, saluting the Philippine flag and reciting the patriotic
pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of
Cebu and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high
school and elementary school students in the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by
their parents who belong to the religious group known as Jehovah's Witnesses which
claims some 100,000 "baptized publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu
and Antonio A. Sangutan," the petitioners are 25 high school and grade school
students enrolled in public schools in Asturias, Cebu, whose parents are Jehovah's
Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M.
Ganal.
All the petitioners in these two cases were expelled from their classes by the public
school authorities in Cebu for refusing to salute the flag, sing the national anthem
and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955,
and by Department Order No. 8 dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS) making the flag ceremony compulsory in all educational
institutions. Republic Act No. 1265 provides:
Sec. 1. All educational institutions shall henceforth observe daily
flag ceremony, which shall be simple and dignified and shall include
the playing or singing of the Philippine National anthem.
Sec. 2. The Secretary of Education is hereby authorized and
directed to issue or cause to be issued rules and regulations for the
proper conduct of the flag ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag ceremony provided by
this Act and in accordance with rules and regulations issued by the
Secretary of Education, after proper notice and hearing, shall
subject the educational institution concerned and its head to public
censure as an administrative punishment which shall be published
at least once in a newspaper of general circulation.
In case of failure to observe for the second time the flag-ceremony
provided by this Act, the Secretary of Education, after proper notice
and hearing, shall cause the cancellation of the recognition or
permit of the private educational institution responsible for such
failure.
The implementing rules and regulations in Department Order No. 8 provide:
RULES AND REGULATIONS FOR CONDUCTING THE FLAG
CEREMONY IN ALL EDUCATIONAL INSTITUTIONS.
1. The Filipino Flag shall be displayed by all educational institutions,
public and private, every school day throughout the year. It shall be
raised at sunrise and lowered at sunset. The flag-staff must be
straight, slightly and gently tapering at the end, and of such height
as would give the Flag a commanding position in front of the
building or within the compound.
2. Every public and private educational institution shall hold a flag-
raising ceremony every morning except when it is raining, in which
event the ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of the same day.
The flag-raising ceremony in the morning shall be conducted in the
following manner:
a. Pupils and teachers or students and faculty
members who are in school and its premises shall
assemble in formation facing the flag. At
command, books shall be put away or held in the
left hand and everybody shall come to attention.
Those with hats shall uncover. No one shall enter
or leave the school grounds during the ceremony.
b. The assembly shall sing the Philippine National
Anthem accompanied by the school band or
without the accompaniment if it has none; or the
 anthem may be played by the school band alone.
At the first note of the Anthem, the flag shall be
raised briskly. While the flag is being raised, all
persons present shall stand at attention and
execute a salute. Boys and men with hats shall
salute by placing the hat over the heart. Those
without hat may stand with their arms and hands
down and straight at the sides. Those in military
or Boy Scout uniform shall give the salute
prescribed by their regulations. The salute shall
be started as the Flag rises, and completed upon
last note of the anthem.
c. Immediately following the singing of the
Anthem, the assembly shall recite in unison the
following patriotic pledge (English or vernacular
version), which may bring the ceremony to a
close. This is required of all public schools and of
private schools which are intended for Filipino
students or whose population is predominantly
Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy
and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-
abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in
deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the
national anthem, and recite the patriotic pledge for they believe that those are "acts
of worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously
give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's
command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol
representing the State (p. 10, Rollo). They think the action of the local authorities in
compelling the flag salute and pledge transcends constitutional limitations on the
State's power and invades the sphere of the intellect and spirit which the Constitution
protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children of Jehovah's
Witnesses may be expelled from school for disobedience of R.A. No. 1265 and
Department Order No. 8, series of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al.,
106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960).
This Court in the Gerona case upheld the expulsion of the students, thus:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Under a system of complete
separation of church and state in the government, the flag is utterly
devoid of any religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is no more a
religious ceremony than the taking of an oath of office by a public
official or by a candidate for admission to the bar.
In requiring school pupils to participate in the flag salute, the State
thru the Secretary of Education is not imposing a religion or
religious belief or a religious test on said students. It is merely
enforcing a
non-discriminatory school regulation applicable to all alike whether
Christian, Moslem, Protestant or Jehovah's Witness. The State is
merely carrying out the duty imposed upon it by the Constitution
which charges it with supervision over and regulation of all
educational institutions, to establish and maintain a complete and
adequate system of public education, and see to it that all schools
aim to develop, among other things, civic conscience and teach the
duties of citizenship.
The children of Jehovah's Witnesses cannot be exempted from
participation in the flag ceremony. They have no valid right to such
exemption. Moreover, exemption to the requirement will disrupt
school discipline and demoralize the rest of the school population
which by far constitutes the great majority.
 The freedom of religious belief guaranteed by the Constitution
does not and cannot mean exemption from or non-compliance
with reasonable and non-discriminatory laws, rules and regulations
promulgated by competent authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by the Legislature
thru Republic Act 1265 to promulgate said Department Order, and
its provisions requiring the observance of the flag salute, not being
a religious ceremony but an act and profession of love and
allegiance and pledge of loyalty to the fatherland which the flag
stands for, does not violate the constitutional provision on freedom
of religion. (Balbuna, et al. vs. Secretary of Education, et al., 110
Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28,
Title VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292)
which took effect on September 21, 1988 (one year after its publication in the Official
Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives
legislative cachet to the ruling in Gerona, thus:
5. Any teacher or student or pupil who refuses to join or participate
in the flag ceremony may be dismissed after due investigation.
However, the petitioners herein have not raised in issue the constitutionality of the
above provision of the new Administrative Code of 1987. They have targeted only
Republic Act No. 1265 and the implementing orders of the DECS.
In 1989, the DECS Regional Office in Cebu received complaints about teachers and
pupils belonging to the Jehovah's Witnesses, and enrolled in various public and
private schools, who refused to sing the Philippine national anthem, salute the
Philippine flag and recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso,
Assistant Division Superintendent, recalling this Court's decision in Gerona, issued
Division Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R.
No. 95770) directing District Supervisors, High School Principals and Heads of Private
Educational institutions as follows:
1. Reports reaching this Office disclose that there are a number of
teachers, pupils, students, and school employees in public schools
who refuse to salute the Philippine flag or participate in the daily
flag ceremony because of some religious belief.
2. Such refusal not only undermines Republic Act No. 1265 and the
DECS Department Order No. 8, Series of 1955 (Implementing Rules
and Regulations) but also strikes at the heart of the DECS sustained
effort to inculcate patriotism and nationalism.
3. Let it be stressed that any belief that considers the flag as an
image is not in any manner whatever a justification for not saluting
the Philippine flag or not participating in flag ceremony. Thus, the
Supreme Court of the Philippine says:
The flag is not an image but a symbol of the
Republic of the Philippines, an emblem of
national sovereignty, of national unity and
cohesion and freedom and liberty which it and
the Constitution guarantee and protect. (Gerona,
et al. vs. Sec. of Education, et al., 106 Phil. 11.)
4. As regards the claim for freedom of belief, which an objectionist
may advance, the Supreme Court asserts:
But between the freedom of belief and the
exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious
belief clashes with the established institutions of
society and with the law, then the former must
yield and give way to the latter. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 11.)
5. Accordingly, teachers and school employees who choose not to
participate in the daily flag ceremony or to obey the flag salute
regulation spelled out in Department Order No. 8, Series of 1955,
shall be considered removed from the service after due process.
6. In strong language about pupils and students who do the same
the Supreme Court has this to say:
If they choose not to obey the flag salute
regulation, they merely lost the benefits of public
education being maintained at the expense of
their fellow Citizens, nothing more. According to
a popular expression, they could take it or leave
it! Having elected not to comply with the
regulation about the flag salute they forfeited
 their right to attend public schools. (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to this Office a
report on those who choose not to participate in flag ceremony or
salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770;
Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade the children of
Jehovah's Witnesses to obey the memorandum. In the Buenavista Elementary
School, the children were asked to sign an Agreement (Kasabutan) in the Cebuano
dialect promising to sing the national anthem, place their right hand on their breast
until the end of the song and recite the pledge of allegiance to the flag (Annex D, p.
46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No. 95887), but they refused to
sign the "Kasabutan" (p. 20, Rolloof G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met
with the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990,
excerpts from which reveal the following:
After two (2) fruitless confrontation meetings with the Jehovah's
Witnesses' parents on October 2, 1990 and yesterday due to their
firm stand not to salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as mandated by law
specifically Republic Act No. 1265, this Office hereby orders the
dropping from the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I up to Grade VI
effective today.
xxx xxx xxx
This order is in compliance with Division Memorandum No. 108 s.
1989 dated November 17, 1989 by virtue of Department Order No.
8 s. 1955 dated July 21, 1955 in accordance with Republic Act No.
1265 and Supreme Court Decision of a case "Genaro Gerona, et al.,
Petitioners and Appellants vs. The Honorable Secretary of
Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered
the "dropping from the rolls" of students who "opted to follow their religious belief
which is against the Flag Salute Law" on the theory that "they forfeited their right to
attend public schools." (p. 47, Rollo of G.R. No. 95770.)
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic],
Agujo Elementary School with the information that this office is sad
to order the dropping of Jeremias Diamos and Jeaneth Diamos,
Grades III and IV pupils respectively from the roll since they opted
to follow their religious belief which is against the Flag Salute
Law (R.A. 1265) and DECS Order No. 8, series of 1955, having
elected not to comply with the regulation about the flag salute they
forfeited their right to attend public schools (Gerona, et al. vs. Sec.
of Education, et al., 106 Philippines 15). However, should they
change their mind to respect and follow the Flag Salute Law they
may be re-accepted.
(Sgd.) MANUEL F. BIONGCOG
District Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students of the
Daanbantayan National High School, Agujo Elementary School, Calape Barangay
National High School, Pinamungajan Provincial High School, Tabuelan Central School,
Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School,
San Juan Primary School and Northern Central Elementary School of San Fernando,
Cebu, upon order of then Acting Division Superintendent Marcelo Bacalso, prompted
some Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro
Cariño but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled
because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division
Superintendent of Schools, would not recall the expulsion orders of his predecessor.
Instead, he verbally caused the expulsion of some more children of Jehovah's
Witnesses.
On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted
without or in excess of their jurisdiction and with grave abuse of discretion — (1) in
ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education, and their right to freedom
of speech, religion and worship (p. 23, Rollo). The petitioners pray that:
 c. Judgment be rendered:
i. declaring null and void the expulsion or
dropping from the rolls of herein petitioners from
their respective schools;
ii. prohibiting and enjoining respondent from
further barring the petitioners from their classes
or otherwise implementing the expulsion
ordered on petitioners; and
iii. compelling the respondent and all persons
acting for him to admit and order the re-
admission of petitioners to their respective
schools. (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a temporary
restraining order be issued enjoining the respondents from enforcing the expulsion
of the petitioners and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-
admit the petitioners to their respective classes until further orders from this Court
(p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District Supervisor
Manuel F. Biongcog to be impleaded as respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions
(p. 98, Rollo) defending the expulsion orders issued by the public respondents on the
grounds that:
1. Bizarre religious practices of the Jehovah's Witnesses produce
rebellious and anti-social school children and consequently disloyal
and mutant Filipino citizens.
2. There are no new and valid grounds to sustain the charges of the
Jehovah's Witnesses that the DECS' rules and regulations on the
flag salute ceremonies are violative of their freedom of religion and
worship.
3. The flag salute is devoid of any religious significance; instead, it
inculcates respect and love of country, for which the flag stands.
4. The State's compelling interests being pursued by the DECS'
lawful regulations in question do not warrant exemption of the
school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions.
5. The issue is not freedom of speech but enforcement of law and
jurisprudence.
6. State's power to regulate repressive and unlawful religious
practices justified, besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with the
enactment of Executive Order No. 292 (The Administrative Code of
1987).
Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received legislative
cachet by its in corporation in the Administrative Code of 1987, the present Court
believes that the time has come to re-examine it. The idea that one may be compelled
to salute the flag, sing the national anthem, and recite the patriotic pledge, during a
flag ceremony on pain of being dismissed from one's job or of being expelled from
school, is alien to the conscience of the present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees their rights to free speech ** and the free
exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution;
Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the highest priority and
the amplest protection among human rights, for it involves the relationship of man
to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs.
Barangan, 135 SCRA 514, 530-531).
The right to religious profession and worship has a two-fold
aspect, vis., freedom to believe and freedom to act on one's belief.
The first is absolute as long as the belief is confined within the
realm of thought. The second is subject to regulation where the
 belief is translated into external acts that affect the public welfare
(J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the compulsory flag
ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance
of the flag ceremony. They quietly stand at attention during the flag ceremony to
show their respect for the right of those who choose to participate in the solemn
proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p.
48). Since they do not engage in disruptive behavior, there is no warrant for their
expulsion.
The sole justification for a prior restraint or limitation on the
exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German vs.
Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty)
to prevent." Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past or perhaps
conducted with very few participants, and the time will come when
we would have citizens untaught and uninculcated in and not
imbued with reverence for the flag and love of country, admiration
for national heroes, and patriotism — a pathetic, even tragic
situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption.
(Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the Jehovah's
Witnesses from saluting the flag, singing the national anthem and reciting the
patriotic pledge, this religious group which admittedly comprises a "small portion of
the school population" will shake up our part of the globe and suddenly produce a
nation "untaught and uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of
Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from
the flag ceremony, not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a
vocation of profession and be taught the virtues of "patriotism, respect for human
rights, appreciation for national heroes, the rights and duties of citizenship, and
moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring about
the very situation that this Court had feared in Gerona. Forcing a small religious
group, through the iron hand of the law, to participate in a ceremony that violates
their religious beliefs, will hardly be conducive to love of country or respect for dully
constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):
. . . To believe that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering estimate of the
appeal of our institutions to free minds. . . . When they [diversity]
are so harmless to others or to the State as those we deal with here,
the price is not too great. But freedom to differ is not limited to
things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things
that touch the heart of the existing order.
Furthermore, let it be noted that coerced unity and loyalty even to
the country, . . . — assuming that such unity and loyalty can be
attained through coercion — is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means. (Meyer vs. Nebraska,
262 U.S. 390, 67 L. ed. 1042, 1046.)
Moreover, the expulsion of members of Jehovah's Witnesses from the schools where
they are enrolled will violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of the State to "protect and
promote the right of all citizens to quality education . . . and to make such education
accessible to all (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the
teaching of their church not to join any labor group:
. . . It is certain that not every conscience can be accommodated by
all the laws of the land; but when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some
 "compelling state interests" intervenes. (Sherbert vs. Berner, 374 Quiason, J., took no part.
U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.)
Gutierrez, Jr., J., is on leave.
We hold that a similar exemption may be accorded to the Jehovah's Witnesses with
regard to the observance of the flag ceremony out of respect for their religious Separate Opinions
beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their right
not to participate in the flag ceremony does not give them a right to disrupt such
patriotic exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II,
185 SCRA 523, 535, while the highest regard must be afforded their right to the free
CRUZ, J., concurring:
exercise of their religion, "this should not be taken to mean that school authorities
are powerless to discipline them" if they should commit breaches of the peace by
I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
actions that offend the sensibilities, both religious and patriotic, of other persons. If
affirmation of a vital postulate of freedom. I would only add my brief observations
they quietly stand at attention during the flag ceremony while their classmates and
concerning Gerona v. Secretary of Education.
teachers salute the flag, sing the national anthem and recite the patriotic pledge, we
do not see how such conduct may possibly disturb the peace, or pose "a grave and
present danger of a serious evil to public safety, public morals, public health or any In my humble view, Gerona was based on an erroneous assumption. The Court that
other legitimate public interest that the State has a right (and duty) to prevent promulgated it was apparently laboring under the conviction that the State had the
(German vs. Barangan, 135 SCRA 514, 517). right to determine what was religious and what was not and to dictate to the
individual what he could and could not worship. In pronouncing that the flag was not
a religious image but a symbol of the nation, it
Before we close this decision, it is appropriate to recall the Japanese occupation of
was implying that no one had the right to worship it or — as the petitioners insisted
our country in 1942-1944 when every Filipino, regardless of religious persuasion, in
— not to worship it. This was no different from saying that the cult that reveres Rizal
fear of the invader, saluted the Japanese flag and bowed before every Japanese
as a divinity should not and cannot do so because he is only a civic figure deserving
soldier. Perhaps, if petitioners had lived through that dark period of our history, they
honor but not veneration.
would not quibble now about saluting the Philippine flag. For when liberation came
in 1944 and our own flag was proudly hoisted aloft again, it was a beautiful sight to
behold that made our hearts pound with pride and joy over the newly-regained It seems to me that every individual is entitled to choose for himself whom or what
freedom and sovereignty of our nation. to worship or whether to worship at all. This is a personal decision he alone can make.
The individual may worship a spirit or a person or a beast or a tree (or a flag), and the
State cannot prevent him from doing so. For that matter, neither can it compel him
Although the Court upholds in this decision the petitioners' right under our
to do so. As long as his beliefs are not externalized in acts that offend the public
Constitution to refuse to salute the Philippine flag on account of their religious
interest, he cannot be prohibited from harboring them or punished for doing so.
beliefs, we hope, nevertheless, that another foreign invasion of our country will not
be necessary in order for our countrymen to appreciate and cherish the Philippine
flag. In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedrathat they are not violating the Bible by saluting the flag. This is
to me an unwarranted intrusion into their religious beliefs, which tell them the
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion
opposite. The State cannot interpret the Bible for them; only they can read it as they
orders issued by the public respondents against the petitioners are hereby
see fit. Right or wrong, the meaning they derive from it cannot be revised or reversed
ANNULLED AND SET ASIDE. The temporary restraining order which was issued by this
except perhaps by their own acknowledged superiors. But certainly not the State. It
Court is hereby made permanent.
has no competence in this matter. Religion is forbidden territory that the State, for
all its power and authority, cannot invade.
SO ORDERED.
I am not unaware of Justice Frankfurter's admonition that "the constitutional
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo
protection of religious freedom terminated disabilities, it did not create new
and Campos, Jr., JJ., concur.
privileges. It gave religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of
religious dogma."
But in the case at bar, the law to which the petitioners are made to conform clashes
with their own understanding of their religious obligations. Significantly, as
the ponencia notes, their intransigence does not disturb the peaceful atmosphere of
the school or otherwise prejudice the public order. Their refusal to salute the flag and
recite the patriotic pledge does not disrupt the flag ceremony. They neither mock nor
disdain it. The petitioners simply stand at attention and keep quiet "to show their
respect for the right of those who choose to participate in the solemn proceedings."
It is for this innocuous conduct that, pursuant to the challenged law and regulations,
the teachers have been dismissed and the students excelled.
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill
of Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a
symbolic manner of communication that conveys its message as clearly as the written
or spoken word. As a valid form of expression, it cannot be compelled any more than
it can be prohibited in the face of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the
free society.
The democratic system provides for the accommodation of diverse ideas, including
the unconventional and even the bizarre or eccentric. The will of the majority
prevails, but it cannot regiment thought by prescribing the recitation by rote of its
opinions or proscribing the assertion of unorthodox or unpopular views as in this
case. The conscientious objections of the petitioners, no less than the impatience of
those who disagree with them, are protected by the Constitution. The State cannot
make the individual speak when the soul within rebels.
PADILLA, J., concurring:
I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino
that school teachers and students who cannot salute the flag, sing the national
anthem and recite the pledge of loyalty to the country, on grounds of religious belief
or conviction, may not on this ground alone be dismissed from the service or expelled
from the school.
At the same time, I am really concerned with what could be the
far-reaching consequences of our ruling in that, we may in effect be sanctioning
a privileged or elite class of teachers and students who will hereafter be exempt from
participating, even when they are in the school premises, in the flag ceremony in
deference to their religious scruples. What happens, for instance, if some citizens,
based also on their religious beliefs, were to refuse to pay taxes and license fees to
the government? Perhaps problems of this nature should not be anticipated. They
will be resolved when and if they ever arise. But with today's decision, we may have
created more problems than we have solved.
It cannot also be denied that the State has the right and even the duty to promote
among its citizens, especially the youth, love and country, respect for the flag and
reverence for its national heroes. It cannot also be disputed that the State has the
right to adopt reasonable means by which these laudable objectives can be
effectively pursued and achieved. The flag ceremony is one such device intended to
inspire patriotism and evoke the finest sentiments of love of country and people.
In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble)
ends. For a select few to be exempt from the flag ceremony and all that it represent
seven if the exemption is predicated on respect for religious scruples, could
be divisive in its impact on the school population or community.
I would therefore submit that, henceforth, teachers and students who because of
religious scruples or beliefs cannot actively participate in the flag ceremony
conducted in the school premises should be excluded beforehand from such
ceremony. Instead of allowing the religious objector to attend the flag ceremony and
display therein his inability to salute the flag, sing the national anthem and recite the
pledge of loyalty to the Republic, he or she should remain in the classroom while
honors to the flag are conducted and manifested in the "quadrangle" or equivalent
place within school premises; or if the flag ceremony must be held in a hall, the
religious objector must take his or her place at the rear of (or outside) the hall while
those who actively participate in the ceremony must take the front places. This
arrangement can, in my view, achieve an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to freedom of religion and a valid
exercise of the State's fundamental and legitimate authority to require homage and
honor to the flag as the symbol of the Nation.
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, et al., petitioners
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F.
BIONGCOG, Cebu District Supervisor, respondents.
R E SO L U T I O N
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March 1, 1993 granting
private respondents' petition for certiorari and prohibition and annulling the
expulsion orders issued by the public respondents therein on the ground that the said
decision created an exemption in favor of the members of the religious sect, the
Jehovah's Witnesses, in violation of the "Establishment Clause" of the Constitution.
The Solicitor General, on behalf of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for
special treatment in favor of a minority sect even on the basis of a
claim of religious freedom may be criticized as granting preference
to the religious beliefs of said sect in violation of the "non-
establishment guarantee" provision of the Constitution. Surely, the
decision of the Court constitutes a special favor which immunizes
religious believers such as Jehovah's Witnesses to the law and the
DECS rules and regulations by interposing the claim that the
conduct required by law and the rules and regulation (sic) are
violative of their religious beliefs. The decision therefore is
susceptible to the very criticism that the grant of exemption is a
violation of the "non-establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority
poses a risk of collision course with the "equal protection of the
laws" clause in respect of the non-exempt, and, in public schools, a
collision course with the "non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a "neutral stance" by
reverting to its holding in Gerona declaring the flag as being devoid of any religious
significance. He stresses that the issue here is not curtailment of religious belief but
regulation of the exercise of religious belief. Finally, he maintains that the State's
interests in the case at bench are constitutional and legal obligations to implement
the law and the constitutional mandate to inculcate in the youth patriotism and
nationalism and to encourage their involvement in public and civic affairs, referring
to the test devised by the United States Supreme Court in U.S. vs. O'Brien.1
II
All the petitioners in the original case2 were minor school children, and members of
the sect, Jehovah's Witnesses (assisted by their parents) who were expelled from
their classes by various public school authorities in Cebu for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge as required by Republic
Act No. 1265 of July 11, 1955 and by Department Order No. 8, dated July 21, 1955
issued by the Department of Education. Aimed primarily at private educational
institutions which did not observe the flag ceremony exercises, Republic Act No. 1265
penalizes all educational institutions for failure or refusal to observe the flag
ceremony with public censure on first offense and cancellation of the recognition or
permit on second offense.
The implementing regulations issued by the Department of Education thereafter
detailed the manner of observance of the same. Immediately pursuant to these
orders, school officials in Masbate expelled children belonging to the sect of the
Jehovah's Witnesses from school for failing or refusing to comply with the flag
ceremony requirement. Sustaining these expulsion orders, this Court in the 1959 case
of Gerona vs. Secretary of Education3 held that:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Considering the complete
separation of church and state in our system of government, the
flag is utterly devoid of any religious significance. Saluting the flag
consequently does not involve any religious ceremony. . . .
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for
there might be as many interpretations and meanings to be given
to a certain ritual or ceremony as there are religious groups or sects
or followers.
Upholding religious freedom as a fundamental right deserving the "highest priority
and amplest protection among human rights," this Court, in Ebralinag vs. Division
Superintendent of Schools of Cebu4 re-examined our over two decades-old decision
in Gerona and reversed expulsion orders made by the public respondents therein as
violative of both the free exercise of religion clause and the right of citizens to
education under the 1987 Constitution.5
From our decision of March 1, 1993, the public respondents filed a motion for
reconsideration on grounds hereinabove stated. After a careful study of the grounds
adduced in the government's Motion For Reconsideration of our original decision,
however, we find no cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the religious sect, the
Jehovah's Witnesses are widely known and are equally widely disseminated in
numerous books, magazines, brochures and leaflets distributed by their members in
their house to house distribution efforts and in many public places. Their refusal to
render obeisance to any form or symbol which smacks of idolatry is based on their
sincere belief in the biblical injunction found in Exodus 20:4,5, against worshipping
forms or idols other than God himself. The basic assumption in their universal refusal
to salute the flags of the countries in which they are found is that such a salute
constitutes an act of religious devotion forbidden by God's law. This assumption,
while "bizarre" to others is firmly anchored in several biblical passages. 6
And yet, while members of Jehovah's Witnesses, on the basis of religious convictions,
refuse to perform an act (or acts) which they consider proscribed by the Bible, they
contend that such refusal should not be taken to indicate disrespect for the symbols
of the country or evidence that they are wanting in patriotism and nationalism. They
point out that as citizens, they have an excellent record as law abiding members of
society even if they do not demonstrate their refusal to conform to the assailed
orders by overt acts of conformity. On the contrary, they aver that they show their
respect through less demonstrative methods manifesting their allegiance, by their
simple obedience to the country's laws,7 by not engaging in antigovernment activities
of any kind,8 and by paying their taxes and dues to society as self-sufficient members
of the community.9 While they refuse to salute the flag, they are willing to stand
quietly and peacefully at attention, hands on their side, in order not to disrupt the
ceremony or disturb those who believe differently. 10
The religious beliefs, practices and convictions of the members of the sect as a
minority are bound to be seen by others as odd and different and at divergence with
the complex requirements of contemporary societies, particularly those societies
which require certain practices as manifestations of loyalty and patriotic behavior.
Against those who believe that coerced loyalty and unity are mere shadows of
patriotism, the tendency to exact "a hydraulic insistence on conformity to
majoritarian standards,"11 is seductive to the bureaucratic mindset as a shortcut to
patriotism.
No doubt, the State possesses what the Solicitor General describes as the
responsibility "to inculcate in the minds of the youth the values of patriotism and
nationalism and to encourage their involvement in public and civic affairs." The
teaching of these values ranks at the very apex of education's "high responsibility" of
shaping up the minds of the youth in those principles which would mold them into
responsible and productive members of our society. However, the government's
interest in molding the young into patriotic and civic spirited citizens is "not totally
free from a balancing process"12 when it intrudes into other fundamental rights such
as those specifically protected by the Free Exercise Clause, the constitutional right to
education and the unassailable interest of parents to guide the religious upbringing
of their children in accordance with the dictates of their conscience and their sincere
religious beliefs.13 Recognizing these values, Justice Carolina Grino-Aquino, the writer
of the original opinion, underscored that a generation of Filipinos which cuts its teeth
on the Bill of Rights would find abhorrent the idea that one may be compelled, on
pain of expulsion, to salute the flag sing the national anthem and recite the patriotic
pledge during a flag ceremony.14 "This coercion of conscience has no place in a free
society".15
The State's contentions are therefore, unacceptable, for no less fundamental than
the right to take part is the right to stand apart. 16 In the context of the instant case,
the freedom of religion enshrined in the Constitution should be seen as the rule, not
the exception. To view the constitutional guarantee in the manner suggested by the
petitioners would be to denigrate the status of a preferred freedom and to relegate
it to the level of an abstract principle devoid of any substance and meaning in the
lives of those for whom the protection is addressed. As to the contention that the
exemption accorded by our decision benefits a privileged few, it is enough to re-
emphasize that "the constitutional protection of religious freedom terminated
disabilities, it did not create new privileges. It gave religious equality, not civil
immunity."17 The essence of the free exercise clause is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma.18 Moreover, the suggestion implicit in the State's pleadings to the effect that
the flag ceremony requirement would be equally and evenly applied to all citizens
regardless of sect or religion and does not thereby discriminate against any particular
sect or denomination escapes the fact that "[a] regulation, neutral on its face, may in
its application, nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion." 19
III
The ostensible interest shown by petitioners in preserving the flag as the symbol of
the nation appears to be integrally related to petitioner's disagreement with the
message conveyed by the refusal of members of the Jehovah's Witness sect to salute
the flag or participate actively in flag ceremonies on religious grounds. 20 Where the
governmental interest clearly appears to be unrelated to the suppression of an idea,
a religious doctrine or practice or an expression or form of expression, this Court will
not find it difficult to sustain a regulation. However, regulations involving this area
are generally held against the most exacting standards, and the zone of protection
accorded by the Constitution cannot be violated, except upon a showing of a clear
and present danger of a substantive evil which the state has a right to
protect.21 Stated differently, in the case of a regulation which appears to abridge a
right to which the fundamental law accords high significance it is the regulation, not
the act (or refusal to act), which is the exception and which requires the court's
strictest scrutiny. In the case at bench, the government has not shown that refusal to
do the acts of conformity exacted by the assailed orders, which respondents point
out attained legislative cachet in the Administrative Code of 1987, would pose a clear
and present danger of a danger so serious and imminent, that it would prompt
legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that
the "State's asserted interest in preserving the fag as a symbol of nationhood and
national unity was an interest related to the suppression of free expression . .
. because the State's concern with protecting the flag's symbolic meaning is
implicated only when a person's treatment of the flag communicates some
message. 22 While the very concept of ordered liberty precludes this Court from
allowing every individual to subjectively define his own standards on matters of
conformity in which society, as a whole has important interests, the records of the
case and the long history of flag salute cases abundantly supports the religious quality
of the claims adduced by the members of the sect Jehovah's Witnesses. Their
treatment of flag as a religious symbol is well-founded and well-documented and is
based on grounds religious principle. The message conveyed by their refusal to
participate in the flag ceremony is religious, shared by the entire community of
Jehovah's Witnesses and is intimately related to their theocratic beliefs and
convictions. The subsequent expulsion of members of the sect on the basis of the
regulations assailed in the original petitions was therefore clearly directed against
religious practice. It is obvious that the assailed orders and memoranda would
gravely endanger the free exercise of the religious beliefs of the members of the sect
and their minor children.
Furthermore, the view that the flag is not a religious but a neutral, secular symbol
expresses a majoritarian view intended to stifle the expression of
the belief that an act of saluting the flag might sometimes be — to some individuals
— so offensive as to be worth their giving up another constitutional right — the right
to education. Individuals or groups of individuals get from a symbol the meaning they
put to it.23 Compelling members of a religious sect to believe otherwise on the pain
of denying minor children the right to an education is a futile and unconscionable
detour towards instilling virtues of loyalty and patriotism which are best instilled and
communicated by painstaking and non-coercive methods. Coerced loyalties, after all,
only serve to inspire the opposite. The methods utilized to impose them breed
resentment and dissent. Those who attempt to coerce uniformity of sentiment soon
find out that the only path towards achieving unity is by way of suppressing
dissent.24 In the end, such attempts only find the "unanimity of the graveyard." 25
To the extent to which members of the Jehovah's Witnesses sect assiduously pursue
their belief in the flag's religious symbolic meaning, the State cannot, without thereby
transgressing constitutionally protected boundaries, impose the contrary view on the
pretext of sustaining a policy designed to foster the supposedly far-reaching goal of
instilling patriotism among the youth. While conceding to the idea — adverted to by
the Solicitor General — that certain methods of religious expression may be
prohibited26 to serve legitimate societal purposes, refusal to participate in the flag
ceremony hardly constitutes a form of religious expression so offensive and noxious
as to prompt legitimate State intervention. It is worth repeating that the absence of
a demonstrable danger of a kind which the State is empowered to protect militates
against the extreme disciplinary methods undertaken by school authorities in trying
to enforce regulations designed to compel attendance in flag ceremonies. Refusal of
the children to participate in the flag salute ceremony would not interfere with or
deny the rights of other school children to do so. It bears repeating that their absence
from the ceremony hardly constitutes a danger so grave and imminent as to warrant
the state's intervention.
Finally, the respondents' insistence on the validity of the actions taken by the
government on the basis of their averment that "a government regulation of
expressive conduct is sufficiently justified if it is within the constitutional power of
the government (and) furthers an important and substantial government
interest"27 misses the whole point of the test devised by the United States Supreme
Court in O'Brien, cited by respondent, because the Court therein was emphatic in
stating that "the government interest (should be) unrelated to the suppression of
free expression." We have already stated that the interest in regulation in the case at
bench was clearly related to the suppression of an expression directly connected with
the freedom of religion and that respondents have not shown to our satisfaction that
the restriction was prompted by a compelling interest in public order which the state
has a right to protect. Moreover, if we were to refer (as respondents did by referring
to the test in O'Brien) to the standards devised by the US Supreme Court in
determining the validity or extent of restrictive regulations impinging on the
freedoms of the mind, then the O'Brien standard is hardly appropriate because the
standard devised in O'Brien only applies if the State's regulation is not related to
communicative conduct. If a relationship exists, a more demanding standard is
applied.28
The responsibility of inculcating the values of patriotism, nationalism, good
citizenship, and moral uprightness is a responsibility shared by the State with parents
and other societal institutions such as religious sects and denominations. The manner
in which such values are demonstrated in a plural society occurs in ways so variable
that government cannot make claims to the exclusivity of its methods of inculcating
patriotism so all-encompassing in scope as to leave no room for appropriate parental
or religious influences. Provided that those influences do not pose a clear and present
danger of a substantive evil to society and its institutions, expressions of diverse
beliefs, no matter how upsetting they may seem to the majority, are the price we pay
for the freedoms we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Francisco
and Hermosisima, Jr., JJ., concur.
Panganiban, J., took no part.
Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs. The
Division Superintendent of Schools of Cebu), 1 March 1993, 219 SCRA 276.
Separate Opinions
MENDOZA, J., concurring:
The value of the national flag as a symbol of national unity is not in question in this
case. The issue rather is whether it is permissible to compel children in the Nation's
schools to salute the flag as a means of promoting nationhood considering that their
refusal to do so is grounded on a religious belief.
Compulsory flag salute lies in a continuum, at one end of which is the obligation to
pay taxes and, at the other, a compulsion to bow down before a graven image.
Members of a religious sect cannot refuse to pay taxes, 1 render military
service,2 submit to vaccination3 or give their children elementary school
education4 on the ground of conscience. But public school children may not be
compelled to attend religious instruction5 or recite prayers or join in bible reading
before the opening of classes in such schools. 6
In determining the validity of compulsory flag salute, we must determine which of
these polar principles exerts a greater pull. The imposition of taxes is justified
because, unless support for the government can be exacted, the existence of the
State itself may well be endangered. The compulsory vaccination of children is
justified because unless the State can compel compliance with vaccination program
there is danger that a disease will spread. But unlike the refusal to pay taxes or to
submit to compulsory vaccination, the refusal to salute the flag threatens no such
dire consequences to the life or health of the State. Consequently, there is no
compelling reason for resorting to compulsion or coercion to achieve the purpose for
which flag salute is instituted.
Indeed schools are not like army camps where the value of discipline justifies
requiring a salute to the flag. Schools are places where diversity and spontaneity are
valued as much as personal discipline is. They are places for the nurturing of ideals
and values, not through compulsion or coercion but through persuasion, because
thought control is a negation of the very values which the educational system seeks
to promote. Persuasion and not persecution is the means for winning the allegiance
of free men. That is why the Constitution provides that the development of moral
character and the cultivation of civic spirit are to be pursued through education that
includes a study of the Constitution, an appreciation of the role of national heroes in
historical development, teaching the rights and duties of citizenship and, at the
option of parents and guardians, religious instruction to be taught by instructors
designated by religious authorities of the religion to which they belong. It is
noteworthy that while the Constitution provides for the national flag, 7 it does not
give the State the power to compel a salute to the flag.
On the other hand, compelling flag salute cannot be likened to compelling members
of a religious sect to bow down before a graven image. The flag is not an image but a
secular symbol. To regard it otherwise because a religious minority regards it so
would be to put in question many regulations that the State may constitutionally
enact or measures which it may adopt to promote civic virtues which the Constitution
itself enjoins the State to promote.8
It trivializes great principles to assimilate compulsory flag salute to a form of
command to worship strange idols not only because the flag is not a religious symbol
but also because the salute required involves nothing more than standing at
attention or placing one's right hand over the right breast as the National Anthem is
played and of raising the right hand as the following pledge is recited:
Ako'y nanunumpang magtatapat sa watawat ng Pilipinas at sa
Republikang kanyang kinakatawan — isang bansang nasa kalinga
ng Dios buo at hindi mahahati, na may kalayaan at katarungan para
sa lahat.
(I pledge allegiance to the flag and to the nation for which it
stands — one nation under God indivisible, with liberty and justice
for all.)
In sum compulsory flag salute violates the Constitution not because the aim of the
exercise is doubtful but because the means employed for accomplishing it is not
permitted. Legitimate ends cannot be pursued by methods which violate
fundamental freedoms when the ends may be achieved by rational ones.
For this reason I join in holding that compulsory flag salute is unconstitutional.
G.R. No. 113105 August 19, 1994
PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and A.
GONZALES, petitioners,
vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management; HON.
VICENTE T. TAN, as National Treasurer and COMMISSION ON AUDIT, respondents.
QUIASON, J.:
Once again this Court is called upon to rule on the conflicting claims of authority
between the Legislative and the Executive in the clash of the powers of the purse
and the sword. Providing the focus for the contest between the President and the
Congress over control of the national budget are the four cases at bench. Judicial
intervention is being sought by a group of concerned taxpayers on the claim that
Congress and the President have impermissibly exceeded their respective
authorities, and by several Senators on the claim that the President has committed
grave abuse of discretion or acted without jurisdiction in the exercise of his veto
power.
I
House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of 1994), was
passed and approved by both houses of Congress on December 17, 1993. As
passed, it imposed conditions and limitations on certain items of appropriations in
the proposed budget previously submitted by the President. It also authorized
members of Congress to propose and identify projects in the "pork barrels" allotted
to them and to realign their respective operating budgets.
Pursuant to the procedure on the passage and enactment of bills as prescribed by
the Constitution, Congress presented the said bill to the President for consideration
and approval.
On December 30, 1993, the President signed the bill into law, and declared the
same to have become Republic Act No. 7663, entitled "AN ACT APPROPRIATING
FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE PHILIPPINES FROM
JANUARY ONE TO DECEMBER THIRTY ONE, NINETEEN HUNDRED AND NINETY-
FOUR, AND FOR OTHER PURPOSES" (GAA of 1994). On the same day, the President
delivered his Presidential Veto Message, specifying the provisions of the bill he
vetoed and on which he imposed certain conditions.
No step was taken in either House of Congress to override the vetoes.
In G.R. No. 113105, the Philippine Constitution Association, Exequiel B. Garcia and
Ramon A. Gonzales as taxpayers, prayed for a writ of prohibition to declare as
unconstitutional and void: (a) Article XLI on the Countrywide Development Fund,
the special provision in Article I entitled Realignment of Allocation for Operational
Expenses, and Article XLVIII on the Appropriation for Debt Service or the amount
appropriated under said Article XLVIII in excess of the P37.9 Billion allocated for the
Department of Education, Culture and Sports; and (b) the veto of the President of
the Special Provision of
Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)
In G.R. No. 113174, sixteen members of the Senate led by Senate President Edgardo
J. Angara, Senator Neptali A. Gonzales, the Chairman of the Committee on Finance,
and Senator Raul S. Roco, sought the issuance of the writs of certiorari, prohibition
and mandamus against the Executive Secretary, the Secretary of the Department of
Budget and Management, and the National Treasurer.
Suing as members of the Senate and taxpayers, petitioners question: (1) the
constitutionality of the conditions imposed by the President in the items of the GAA
of 1994: (a) for the Supreme Court, (b) Commission on Audit (COA), (c)
Ombudsman, (d) Commission on Human Rights (CHR), (e) Citizen Armed Forces
Geographical Units (CAFGU'S) and (f) State Universities and Colleges (SUC's); and (2)
the constitutionality of the veto of the special provision in the appropriation for
debt service.
In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto Tañada (a co-
petitioner in G.R. No. 113174), together with the Freedom from Debt Coalition, a
non-stock domestic corporation, sought the issuance of the writs of prohibition and
mandamus against the Executive Secretary, the Secretary of the Department of
Budget and Management, the National Treasurer, and the COA.
Petitioners Tañada and Romulo sued as members of the Philippine Senate and
taxpayers, while petitioner Freedom from Debt Coalition sued as a taxpayer. They
challenge the constitutionality of the Presidential veto of the special provision in the
appropriations for debt service and the automatic appropriation of funds therefor.
In G.R. No. 11388, Senators Tañada and Romulo sought the issuance of the writs of
prohibition and mandamus against the same respondents in G.R. No. 113766. In this
petition, petitioners contest the constitutionality of: (1) the veto on four special
provision added to items in the GAA of 1994 for the Armed Forces of the Philippines
(AFP) and the Department of Public Works and Highways (DPWH); and (2) the
conditions imposed by the President in the implementation of certain
appropriations for the CAFGU's, the DPWH, and the National Housing Authority
(NHA).
Petitioners also sought the issuance of temporary restraining orders to enjoin
respondents Secretary of Budget and Management, National Treasurer and COA
from enforcing the questioned provisions of the GAA of 1994, but the Court
declined to grant said provisional reliefs on the time- honored principle of according
the presumption of validity to statutes and the presumption of regularity to official
acts.
In view of the importance and novelty of most of the issues raised in the four
petitions, the Court invited former Chief Justice Enrique M. Fernando and former
Associate Justice Irene Cortes to submit their respective memoranda as Amicus
curiae, which they graciously did.
II
Locus Standi
When issues of constitutionality are raised, the Court can exercise its power of
judicial review only if the following requisites are compresent: (1) the existence of
an actual and appropriate case; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at
the earliest opportunity; and (4) the constitutional question is the lis mota of the
case (Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51
[1990]; Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; People v. Vera, 65
Phil. 56 [1937]).
While the Solicitor General did not question the locus standi of petitioners in G.R.
No. 113105, he claimed that the remedy of the Senators in the other petitions is
political (i.e., to override the vetoes) in effect saying that they do not have the
requisite legal standing to bring the suits.
The legal standing of the Senate, as an institution, was recognized in Gonzales
v. Macaraig, Jr., 191 SCRA 452 (1990). In said case, 23 Senators, comprising the
entire membership of the Upper House of Congress, filed a petition to nullify the
presidential veto of Section 55 of the GAA of 1989. The filing of the suit was
authorized by Senate Resolution No. 381, adopted on February 2, 1989, and which
reads as follows:
Authorizing and Directing the Committee on Finance to Bring in
the Name of the Senate of the Philippines the Proper Suit with the
Supreme Court of the Philippines contesting the Constitutionality
of the Veto by the President of Special and General Provisions,
particularly Section 55, of the General Appropriation Bill of 1989
(H.B. No. 19186) and For Other Purposes.
In the United States, the legal standing of a House of Congress to sue has been
recognized (United States v. American Tel. & Tel. Co., 551 F. 2d 384, 391 [1976];
Notes: Congressional Access To The Federal Courts, 90 Harvard Law Review 1632
[1977]).
While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate
President and the Chairman of the Committee on Finance, the suit was not
authorized by the Senate itself. Likewise, the petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling resolution for the
purpose.
Therefore, the question of the legal standing of petitioners in the three cases
becomes a preliminary issue before this Court can inquire into the validity of the
presidential veto and the conditions for the implementation of some items in the
GAA of 1994.
We rule that a member of the Senate, and of the House of Representatives for that
matter, has the legal standing to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bill.
Where the veto is claimed to have been made without or in excess of the authority
vested on the President by the Constitution, the issue of an impermissible intrusion
of the Executive into the domain of the Legislature arises (Notes: Congressional
Standing To Challenge Executive Action, 122 University of Pennsylvania Law Review
1366 [1974]).
To the extent the power of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers
of that institution (Coleman v. Miller, 307 U.S. 433 [1939]; Holtzman v. Schlesinger,
484 F. 2d 1307 [1973]).
An act of the Executive which injures the institution of Congress causes a derivative
but nonetheless substantial injury, which can be questioned by a member of
Congress (Kennedy v. Jones, 412 F. Supp. 353 [1976]). In such a case, any member
of Congress can have a resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a whole or
individual Senators as such having a substantial interest in the
question at issue. It could likewise be said that there was the
requisite injury to their rights as Senators. It would then be futile
to raise any locus standi issue. Any intrusion into the domain
appertaining to the Senate is to be resisted. Similarly, if the
situation were reversed, and it is the Executive Branch that could
allege a transgression, its officials could likewise file the
corresponding action. What cannot be denied is that a Senator
has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office (Memorandum,
p. 14).
It is true that the Constitution provides a mechanism for overriding a veto (Art. VI,
Sec. 27 [1]). Said remedy, however, is available only when the presidential veto is
based on policy or political considerations but not when the veto is claimed to
be ultra vires. In the latter case, it becomes the duty of the Court to draw the
dividing line where the exercise of executive power ends and the bounds of
legislative jurisdiction begin.
III
G.R. No. 113105
1. Countrywide Development Fund
Article XLI of the GAA of 1994 sets up a Countrywide Development Fund of
P2,977,000,000.00 to "be used for infrastructure, purchase of ambulances and
computers and other priority projects and activities and credit facilities to qualified
beneficiaries." Said Article provides:
COUNTRYWIDE DEVELOPMENT FUND
For Fund requirements of countrywide
development projects P 2,977,000,000
———————
New Appropriations, by Purpose
Current Operating Expenditures
A. PURPOSE
Personal Maintenance Capital Total
Services and Other Outlays
Operating
Expenses
1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000
P2,977,000,000
TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000 P2,977,000,000
Special Provisions
1. Use and Release of Funds. The amount herein appropriated
shall be used for infrastructure, purchase of ambulances and
computers and other priority projects and activities, and credit
facilities to qualified beneficiaries as proposed and identified by
officials concerned according to the following allocations:
Representatives, P12,500,000 each; Senators, P18,000,000 each;
Vice-President, P20,000,000; PROVIDED, That, the said credit
facilities shall be constituted as a revolving fund to be
administered by a government financial institution (GFI) as a trust
fund for lending operations. Prior years releases to local
government units and national government agencies for this
purpose shall be turned over to the government financial
institution which shall be the sole administrator of credit facilities
released from this fund.
The fund shall be automatically released quarterly by way of
Advice of Allotments and Notice of Cash Allocation directly to the
assigned implementing agency not later than five (5) days after
the beginning of each quarter upon submission of the list of
projects and activities by the officials concerned.
 2. Submission of Quarterly Reports. The Department of Budget
and Management shall submit within thirty (30) days after the
end of each quarter a report to the Senate Committee on Finance
and the House Committee on Appropriations on the releases
made from this Fund. The report shall include the listing of the
projects, locations, implementing agencies and the endorsing
officials (GAA of 1994, p. 1245).
Petitioners claim that the power given to the members of Congress to propose and
identify the projects and activities to be funded by the Countrywide Development
Fund is an encroachment by the legislature on executive power, since said power in
an appropriation act in implementation of a law. They argue 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
(Rollo, pp. 78- 86).
Under the Constitution, the spending power called by James Madison as "the power
of the purse," belongs to Congress, subject only to the veto power of the President.
The President may propose the budget, but still the final say on the matter of
appropriations is lodged in the Congress.
The power of appropriation carries with it the power to specify the project or
activity to be funded under the appropriation law. It can be as detailed and as broad
as Congress wants it to be.
The Countrywide Development Fund is explicit that it shall be used "for
infrastructure, purchase of ambulances and computers and other priority projects
and activities and credit facilities to qualified beneficiaries . . ." It was Congress itself
that determined the purposes for the appropriation.
Executive function under the Countrywide Development Fund involves
implementation of the priority projects specified in the law.
The authority given to the members of Congress is only to propose and identify
projects to be implemented by the President. Under Article XLI of the GAA of 1994,
the President must perforce examine whether the proposals submitted by the
members of Congress fall within the specific items of expenditures for which the
Fund was set up, and if qualified, he next determines whether they are in line with
other projects planned for the locality. Thereafter, if the proposed projects qualify
for funding under the Funds, it is the President who shall implement them. In short,
the proposals and identifications made by the members of Congress are merely
recommendatory.
The procedure of proposing and identifying by members of Congress of particular
projects or activities under Article XLI of the GAA of 1994 is imaginative as it is
innovative.
The Constitution is a framework of a workable government and its interpretation
must take into account the complexities, realities and politics attendant to the
operation of the political branches of government. Prior to the GAA of 1991, there
was an uneven allocation of appropriations for the constituents of the members of
Congress, with the members close to the Congressional leadership or who hold
cards for "horse-trading," getting more than their less favored colleagues. The
members of Congress also had to reckon with an unsympathetic President, who
could exercise his veto power to cancel from the appropriation bill a pet project of a
Representative or Senator.
The Countrywide Development Fund attempts to make equal the unequal. 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.
2. Realignment of Operating Expenses
Under the GAA of 1994, the appropriation for the Senate is P472,000,000.00 of
which P464,447,000.00 is appropriated for current operating expenditures, while
the appropriation for the House of Representatives is P1,171,924,000.00 of which
P1,165,297,000.00 is appropriated for current operating expenditures (GAA of
1994, pp. 2, 4, 9, 12).
The 1994 operating expenditures for the Senate are as follows:
Personal Services
Salaries, Permanent 153,347
Salaries/Wage, Contractual/Emergency 6,870
————
Total Salaries and Wages 160,217
=======
Other Compensation
 Step Increments 1,073 Salaries, Permanent 261,557
Honoraria and Commutable Allowances 3,731 Salaries/Wages, Contractual/Emergency 143,643
Compensation Insurance Premiums 1,579 ————
Pag-I.B.I.G. Contributions 1,184 Total Salaries and Wages 405,200
Medicare Premiums 888 =======
Bonus and Cash Gift 14,791
Terminal Leave Benefits 2,000 Other Compensation
Personnel Economic Relief Allowance 10,266
Additional Compensation of P500 under A.O. 53 11,130 Step Increments 4,312
Others 57,173 Honoraria and Commutable
———— Allowances 4,764
Total Other Compensation 103,815 Compensation Insurance
———— Premiums 1,159
01 Total Personal Services 264,032 Pag-I.B.I.G. Contributions 5,231
======= Medicare Premiums 2,281

Maintenance and Other Operating Expenses Bonus and Cash Gift 35,669
Terminal Leave Benefits 29
02 Traveling Expenses 32,841 Personnel Economic Relief
03 Communication Services 7,666 Allowance 21,150
04 Repair and Maintenance of Government Facilities 1,220 Additional Compensation of P500 under A.O. 53
05 Repair and Maintenance of Government Vehicles 318 Others 106,140
06 Transportation Services 128 ————
07 Supplies and Materials 20,189 Total Other Compensation 202,863
08 Rents 24,584 ————
14 Water/Illumination and Power 6,561 01 Total Personal Services 608,063
15 Social Security Benefits and Other Claims 3,270 =======
17 Training and Seminars Expenses 2,225
18 Extraordinary and Miscellaneous Expenses 9,360 Maintenance and Other Operating Expenses
23 Advertising and Publication
24 Fidelity Bonds and Insurance Premiums 1,325 02 Traveling Expenses 139,611
29 Other Services 89,778 03 Communication Services 22,514
———— 04 Repair and Maintenance of Government Facilities 5,116
Total Maintenance and Other Operating Expenditures 200,415 05 Repair and Maintenance of Government Vehicles 1,863
———— 06 Transportation Services 178
Total Current Operating Expenditures 464,447 07 Supplies and Materials 55,248
======= 10 Grants/Subsidies/Contributions 940
14 Water/Illumination and Power 14,458
(GAA of 1994, pp. 3-4) 15 Social Security Benefits and Other Claims 325
17 Training and Seminars Expenses 7,236
The 1994 operating expenditures for the House of Representatives are as follows: 18 Extraordinary and Miscellaneous Expenses 14,474
20 Anti-Insurgency/Contingency Emergency Expenses 9,400
Personal Services 23 Advertising and Publication 242
 24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 284,209
————
Total Maintenance and Other Operating Expenditures 557,234
————
Total Current Operating Expenditures 1,165,297
=======
(GAA of 1994, pp. 11-12)
The Special Provision Applicable to the Congress of the Philippines provides:
4. Realignment of Allocation for Operational Expenses. A member
of Congress may realign his allocation for operational expenses to
any other expenses category provide the total of said allocation is
not exceeded. (GAA of 1994, p. 14).
The appropriation for operating expenditures for each House is further divided into
expenditures for salaries, personal services, other compensation benefits,
maintenance expenses and other operating expenses. In turn, each member of
Congress is allotted for his own operating expenditure a proportionate share of the
appropriation for the House to which he belongs. If he does not spend for one items
of expense, the provision in question allows him to transfer his allocation in said
item to another item of expense.
Petitioners assail the special provision allowing a member of Congress to realign his
allocation for operational expenses to any other expense category (Rollo, pp. 82-
92), claiming that this practice is prohibited by Section 25(5), Article VI of the
Constitution. Said section provides:
No law shall be passed authorizing any transfer of appropriations:
however, the President, the President of the Senate, the Speaker
of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law,
be authorized to augment any item in the general appropriations
law for their respective offices from savings in other items of their
respective appropriations.
The proviso of said Article of the Constitution grants the President of the Senate
and the Speaker of the House of Representatives the power to augment items in an
appropriation act for their respective offices from savings in other items of their
appropriations, whenever there is a law authorizing such augmentation.
The special provision on realignment of the operating expenses of members of
Congress is authorized by Section 16 of the General Provisions of the GAA of 1994,
which provides:
Expenditure Components. Except by act of the Congress of the
Philippines, no change or modification shall be made in the
expenditure items authorized in this Act and other appropriation
laws unless in cases
of augmentations from savings in appropriations as authorized
under Section 25(5) of Article VI of the Constitution (GAA of 1994,
p. 1273).
Petitioners argue that the Senate President and the Speaker of the House of
Representatives, but not the individual members of Congress are the ones
authorized to realign the savings as appropriated.
Under the Special Provisions applicable to the Congress of the Philippines, the
members of Congress only determine the necessity of the realignment of the
savings in the allotments for their operating expenses. They are in the best position
to do so because they are the ones who know whether there are savings available
in some items and whether there are deficiencies in other items of their operating
expenses that need augmentation. However, it is the Senate President and the
Speaker of the House of Representatives, as the case may be, who shall approve the
realignment. Before giving their stamp of approval, these two officials will have to
see to it that:
(1) The funds to be realigned or transferred are actually savings in the items of
expenditures from which the same are to be taken; and
(2) The transfer or realignment is for the purposes of augmenting the items of
expenditure to which said transfer or realignment is to be made.
3. Highest Priority for Debt Service
While Congress appropriated P86,323,438,000.00 for debt service (Article XLVII of
the GAA of 1994), it appropriated only P37,780,450,000.00 for the Department of
Education Culture and Sports. Petitioners urged that Congress cannot give debt
service the highest priority in the GAA of 1994 (Rollo, pp. 93-94) because under the
Constitution it should be education that is entitled to the highest funding. They
invoke Section 5(5), Article XIV thereof, which provides:
(5) The State shall assign the highest budgetary priority to
education and ensure that teaching will attract and retain its
 rightful share of the best available talents through adequate
remuneration and other means of job satisfaction and fulfillment.
This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221 (1991), where this
Court held that Section 5(5), Article XIV of the Constitution, is merely directory,
thus:
While it is true that under Section 5(5), Article XIV of the
Constitution, Congress is mandated to "assign the highest
budgetary priority to education" in order to "insure that teaching
will attract and retain its rightful share of the best available
talents through adequate remuneration and other means of job
satisfaction and fulfillment," it does not thereby follow that the
hands of Congress are so hamstrung as to deprive it the power to
respond to the imperatives of the national interest and for the
attainment of other state policies or objectives.
As aptly observed by respondents, since 1985, the budget for
education has tripled to upgrade and improve the facility of the
public school system. The compensation of teachers has been
doubled. The amount of P29,740,611,000.00 set aside for the
Department of Education, Culture and Sports under the General
Appropriations Act (R.A. No. 6381), is the highest budgetary
allocation among all department budgets. This is a clear
compliance with the aforesaid constitutional mandate according
highest priority to education.
Having faithfully complied therewith, Congress is certainly not
without any power, guided only by its good judgment, to provide
an appropriation, that can reasonably service our enormous debt,
the greater portion of which was inherited from the previous
administration. It is not only a matter of honor and to protect the
credit standing of the country. More especially, the very survival
of our economy is at stake. Thus, if in the process Congress
appropriated an amount for debt service bigger than the share
allocated to education, the Court finds and so holds that said
appropriation cannot be thereby assailed as unconstitutional.
G.R. No. 113105
G.R. No. 113174
Veto of Provision on Debt Ceiling
The Congress added a Special Provision to Article XLVIII (Appropriations for Debt
Service) of the GAA of 1994 which provides:
Special Provisions
1. Use of the Fund. The appropriation authorized herein shall be
used for payment of principal and interest of foreign and domestic
indebtedness; PROVIDED, That any payment in excess of the
amount herein appropriated shall be subject to the approval of
the President of the Philippines with the concurrence of the
Congress of the Philippines; PROVIDED, FURTHER, That in no case
shall this fund be used to pay for the liabilities of the Central Bank
Board of Liquidators.
2. Reporting Requirement. The Bangko Sentral ng Pilipinas and the
Department of Finance shall submit a quarterly report of actual
foreign and domestic debt service payments to the House
Committee on Appropriations and Senate Finance Committee
within one (1) month after each quarter (GAA of 1944, pp. 1266).
The President vetoed the first Special Provision, without vetoing the
P86,323,438,000.00 appropriation for debt service in said Article. According to the
President's Veto Message:
IV. APPROPRIATIONS FOR DEBT SERVICE
I would like to emphasize that I concur fully with the desire of
Congress to reduce the debt burden by decreasing the
appropriation for debt service as well as the inclusion of the
Special Provision quoted below. Nevertheless, I believe that this
debt reduction scheme cannot be validly done through the 1994
GAA. This must be addressed by revising our debt policy by way of
innovative and comprehensive debt reduction programs
conceptualized within the ambit of the Medium-Term Philippine
Development Plan.
Appropriations for payment of public debt, whether foreign or
domestic, are automatically appropriated pursuant to the Foreign
Borrowing Act and Section 31 of P.D. No. 1177 as reiterated under
Section 26, Chapter 4, Book VI of E.O. No. 292, the Administrative
Code of 1987. I wish to emphasize that the constitutionality of
such automatic provisions on debt servicing has been upheld by
the Supreme Court in the case of "Teofisto T. Guingona, Jr., and
 Aquilino Q. Pimentel, Jr. v. Hon. Guillermo N. Carague, in his
capacity as Secretary of Budget and Management, et al.," G.R. No.
94571, dated April 22, 1991.
I am, therefore vetoing the following special provision for the
reason that the GAA is not the appropriate legislative measure to
amend the provisions of the Foreign Borrowing Act, P.D. No. 1177
and E.O. No. 292:
Use of the Fund. The appropriation authorized
herein shall be used for payment of principal
and interest of foreign and domestic
indebtedness: PROVIDED, That any payment in
excess of the amount herein appropriated shall
be subject to the approval of the President of
the Philippines with the concurrence of the
Congress of the
Philippines: PROVIDED, FURTHER, That in no
case shall this fund be used to pay for the
liabilities of the Central Bank Board of
Liquidators (GAA of 1994, p. 1290).
Petitioners claim that the President cannot veto the Special Provision on the
appropriation for debt service without vetoing the entire amount of P86,323,438.00
for said purpose (Rollo, G.R. No. 113105, pp. 93-98; Rollo, G.R. No. 113174, pp. 16-
18). The Solicitor General counterposed that the Special Provision did not relate to
the item of appropriation for debt service and could therefore be the subject of an
item veto (Rollo, G.R. No. 113105, pp. 54-60; Rollo, G.R. No. 113174, pp. 72-82).
This issue is a mere rehash of the one put to rest in Gonzales v. Macaraig, Jr., 191
SCRA 452 (1990). In that case, the issue was stated by the Court, thus:
The fundamental issue raised is whether or not the veto by the
President of Section 55 of the 1989 Appropriations Bill (Section
55
FY '89), and subsequently of its counterpart Section 16 of the
1990 Appropriations Bill (Section 16 FY '90), is unconstitutional
and without effect.
The Court re-stated the issue, just so there would not be any misunderstanding
about it, thus:
The focal issue for resolution is whether or not the President
exceeded the item-veto power accorded by the Constitution. Or
differently put, has the President the power to veto "provisions"
of an Appropriations Bill?
The bases of the petition in Gonzales, which are similar to those invoked in the
present case, are stated as follows:
In essence, petitioners' cause is anchored on the following
grounds: (1) the President's line-veto power as regards
appropriation bills is limited to item/s and does not cover
provision/s; therefore, she exceeded her authority when she
vetoed Section 55 (FY '89) and Section 16 (FY '90) which are
provisions; (2) when the President objects to a provision of an
appropriation bill, she cannot exercise the item-veto power but
should veto the entire bill; (3) the item-veto power does not carry
with it the power to strike out conditions or restrictions for that
would be legislation, in violation of the doctrine of separation of
powers; and (4) the power of augmentation in Article VI, Section
25 [5] of the 1987 Constitution, has to be provided for by law and,
therefore, Congress is also vested with the prerogative to impose
restrictions on the exercise of that power.
The restrictive interpretation urged by petitioners that the
President may not veto a provision without vetoing the entire bill
not only disregards the basic principle that a distinct and
severable part of a bill may be the subject of a separate veto but
also overlooks the Constitutional mandate that any provision in
the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall
be limited in its operation to the appropriation to which it relates
(1987 Constitution, Article VI, Section 25 [2]). In other words, in
the true sense of the term, a provision in an Appropriations Bill is
limited in its operation to some particular appropriation to which
it relates, and does not relate to the entire bill.
The Court went one step further and ruled that even assuming arguendo that
"provisions" are beyond the executive power to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary sense of the
term, they are "inappropriate provisions" that should be treated as "items" for the
purpose of the President's veto power.
The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said that Congress
cannot include in a general appropriations bill matters that should be more properly
enacted in separate legislation, and if it does that, the inappropriate provisions
inserted by it must be treated as "item", which can be vetoed by the President in
the exercise of his item-veto power.
It is readily apparent that the Special Provision applicable to the appropriation for
debt service insofar as it refers to funds in excess of the amount appropriated in the
bill, is an "inappropriate" provision referring to funds other than the
P86,323,438,000.00 appropriated in the General Appropriations Act of 1991.
Likewise the vetoed provision is clearly an attempt to repeal Section 31 of P.D. No.
1177 (Foreign Borrowing Act) and E.O. No. 292, and to reverse the debt payment
policy. As held by the Court in Gonzales, the repeal of these laws should be done in
a separate law, not in the appropriations law.
The Court will indulge every intendment in favor of the constitutionality of a veto,
the same as it will presume the constitutionality of an act of Congress (Texas Co. v.
State, 254 P. 1060; 31 Ariz, 485, 53 A.L.R. 258 [1927]).
The veto power, while exercisable by the President, is actually a part of the
legislative process (Memorandum of Justice Irene Cortes as Amicus Curiae, pp. 3-7).
That is why it is found in Article VI on the Legislative Department rather than in
Article VII on the Executive Department in the Constitution. There is, therefore,
sound basis to indulge in the presumption of validity of a veto. The burden shifts on
those questioning the validity thereof to show that its use is a violation of the
Constitution.
Under his general veto power, the President has to veto the entire bill, not merely
parts thereof (1987 Constitution, Art. VI, Sec. 27[1]). The exception to the general
veto power is the power given to the President to veto any particular item or items
in a general appropriations bill (1987 Constitution, Art. VI,
Sec. 27[2]). In so doing, the President must veto the entire item.
A general appropriations bill is a special type of legislation, whose content is limited
to specified sums of money dedicated to a specific purpose or a separate fiscal unit
(Beckman, The Item Veto Power of the Executive,
31 Temple Law Quarterly 27 [1957]).
The item veto was first introduced by the Organic Act of the Philippines passed by
the U.S. Congress on August 29, 1916. The concept was adopted from some State
Constitutions.
Cognizant of the legislative practice of inserting provisions, including conditions,
restrictions and limitations, to items in appropriations bills, the Constitutional
Convention added the following sentence to Section 20(2), Article VI of the 1935
Constitution:
. . . When a provision of an appropriation bill affect one or more
items of the same, the President cannot veto the provision
without at the same time vetoing the particular item or items to
which it relates . . . .
In short, under the 1935 Constitution, the President was empowered to veto
separately not only items in an appropriations bill but also "provisions".
While the 1987 Constitution did not retain the aforementioned sentence added to
Section 11(2) of Article VI of the 1935 Constitution, it included the following
provision:
No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates
(Art. VI, Sec. 25[2]).
In Gonzales, we made it clear that the omission of that sentence of Section 16(2) of
the 1935 Constitution in the 1987 Constitution should not be interpreted to mean
the disallowance of the power of the President to veto a "provision".
As the Constitution is explicit that the provision which Congress can include in an
appropriations bill must "relate specifically to some particular appropriation
therein" and "be limited in its operation to the appropriation to which it relates," it
follows that any provision which does not relate to any particular item, or which
extends in its operation beyond an item of appropriation, is considered "an
inappropriate provision" which can be vetoed separately from an item. Also to be
included in the category of "inappropriate provisions" are unconstitutional
provisions and provisions which are intended to amend other laws, because clearly
these kind of laws have no place in an appropriations bill. These are matters of
general legislation more appropriately dealt with in separate enactments. Former
Justice Irene Cortes, as Amicus Curiae, commented that Congress cannot by law
establish conditions for and regulate the exercise of powers of the President given
by the Constitution for that would be an unconstitutional intrusion into executive
prerogative.
The doctrine of "inappropriate provision" was well elucidated in Henry v. Edwards,
supra., thus:
Just as the President may not use his item-veto to usurp
constitutional powers conferred on the legislature, neither can
the legislature deprive the Governor of the constitutional powers
conferred on him as chief executive officer of the state by
including in a general appropriation bill matters more properly
enacted in separate legislation. The Governor's constitutional
power to veto bills of general legislation . . . cannot be abridged
by the careful placement of such measures in a general
appropriation bill, thereby forcing the Governor to choose
between approving unacceptable substantive legislation or
vetoing "items" of expenditures essential to the operation of
government. The legislature cannot by location of a bill give it
immunity from executive veto. Nor can it circumvent the
Governor's veto power over substantive legislation by artfully
drafting general law measures so that they appear to be true
conditions or limitations on an item of appropriation. Otherwise,
the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government
in contravention of the separation of powers doctrine . . . We are
no more willing to allow the legislature to use its appropriation
power to infringe on the Governor's constitutional right to veto
matters of substantive legislation than we are to allow the
Governor to encroach on the Constitutional powers of the
legislature. In order to avoid this result, we hold that, when the
legislature inserts inappropriate provisions in a general
appropriation bill, such provisions must be treated as "items" for
purposes of the Governor's item veto power over general
appropriation bills.
xxx xxx xxx
. . . Legislative control cannot be exercised in such a manner as to
encumber the general appropriation bill with veto-proof
"logrolling measures", special interest provisions which could not
succeed if separately enacted, or "riders", substantive pieces of
legislation incorporated in a bill to insure passage without veto . . .
(Emphasis supplied).
Petitioners contend that granting arguendo that the veto of the Special Provision on
the ceiling for debt payment is valid, the President cannot automatically
appropriate funds for debt payment without complying with the conditions for
automatic appropriation under the provisions of R.A. No. 4860 as amended by P.D.
No. 81 and the provisions of P.D. No. 1177 as amended by the Administrative Code
of 1987 and P.D. No. 1967 (Rollo, G.R. No. 113766, pp. 9-15).
Petitioners cannot anticipate that the President will not faithfully execute the laws.
The writ of prohibition will not issue on the fear that official actions will be done in
contravention of the laws.
The President vetoed the entire paragraph one of the Special Provision of the item
on debt service, including the provisions that the appropriation authorized in said
item "shall be used for payment of the principal and interest of foreign and
domestic indebtedness" and that "in no case shall this fund be used to pay for the
liabilities of the Central Bank Board of Liquidators." These provisions are germane
to and have a direct connection with the item on debt service. Inherent in the
power of appropriation is the power to specify how the money shall be spent
(Henry v. Edwards, LA, 346 So., 2d., 153). The said provisos, being appropriate
provisions, cannot be vetoed separately. Hence the item veto of said provisions is
void.
We reiterate, in order to obviate any misunderstanding, that we are sustaining the
veto of the Special Provision of the item on debt service only with respect to the
proviso therein requiring that "any payment in excess of the amount herein,
appropriated shall be subject to the approval of the President of the Philippines
with the concurrence of the Congress of the Philippines . . ."
G.R. NO. 113174
G.R. NO. 113766
G.R. NO. 11388
1. Veto of provisions for revolving funds of SUC's.
In the appropriation for State Universities and Colleges (SUC's), the President
vetoed special provisions which authorize the use of income and the creation,
operation and maintenance of revolving funds. The Special Provisions vetoed are
the following:
(H. 7) West Visayas State University
Equal Sharing of Income. Income earned by the University subject
to Section 13 of the special provisions applicable to all State
Universities and Colleges shall be equally shared by the University
and the University Hospital (GAA of 1994, p. 395).
 xxx xxx xxx
(J. 3) Leyte State College
Revolving Fund for the Operation of LSC House and Human
Resources Development Center (HRDC). The income of Leyte State
College derived from the operation of its LSC House and HRDC
shall be constituted into a Revolving Fund to be deposited in an
authorized government depository bank for the operational
expenses of these projects/services. The net income of the
Revolving Fund at the end of the year shall be remitted to the
National Treasury and shall accrue to the General Fund. The
implementing guidelines shall be issued by the Department of
Budget and Management (GAA of 1994, p. 415).
The vetoed Special Provisions applicable to all SUC's are the following:
The President gave his reason for the veto thus:
12. Use of Income from Extension Services. State Universities and
Colleges are authorized to use their income from their extension
services. Subject to the approval of the Board of Regents and the
approval of a special budget pursuant to Sec. 35, Chapter 5, Book
VI of E.O.
No. 292, such income shall be utilized solely for faculty
development, instructional materials and work study program
(GAA of 1994, p. 490).
xxx xxx xxx
13. Income of State Universities and Colleges. The income of State
Universities and Colleges derived from tuition fees and other
sources as may be imposed by governing boards other than those
accruing to revolving funds created under LOI Nos. 872 and 1026
and those authorized to be recorded as trust receipts pursuant to
Section 40, Chapter 5, Book VI of E.O. No. 292 shall be deposited
with the National Treasury and recorded as a Special Account in
the General Fund pursuant to P.D. No. 1234 and P.D. No. 1437 for
the use of the institution, subject to Section 35, Chapter 5, Book
VI of E.O. No. 292L PROVIDED, That disbursements from the
Special Account shall not exceed the amount actually earned and
deposited: PROVIDED, FURTHER, That a cash advance on such
income may be allowed State half of income actually realized
during the preceding year and this cash advance shall be charged
against income actually earned during the budget year: AND
PROVIDED, FINALLY, That in no case shall such funds be used to
create positions, nor for payment of salaries, wages or
allowances, except as may be specifically approved by the
Department of Budge and Management for income-producing
activities, or to purchase equipment or books, without the prior
approval of the President of the Philippines pursuant to Letter of
Implementation No. 29.
All collections of the State Universities and Colleges for fees,
charges and receipts intended for private recipient units, including
private foundations affiliated with these institutions shall be duly
acknowledged with official receipts and deposited as a trust
receipt before said income shall be subject to Section 35, Chapter
5, Book VI of E.O. No. 292
(GAA of 1994, p. 490).
Pursuant to Section 65 of the Government Auditing Code of the
Philippines, Section 44, Chapter 5, Book VI of E.O. No. 292, s. 1987
and Section 22, Article VII of the Constitution, all income earned
by all Government offices and agencies shall accrue to the General
Fund of the Government in line with the One Fund Policy
enunciated by Section 29 (1), Article VI and Section 22, Article VII
of the Constitution. Likewise, the creation and establishment of
revolving funds shall be authorized by substantive law pursuant to
Section 66 of the Government Auditing Code of the Philippines
and Section 45, Chapter 5, Book VI of E.O. No. 292.
Notwithstanding the aforementioned provisions of the
Constitution and existing law, I have noted the proliferation of
special provisions authorizing the use of agency income as well as
the creation, operation and maintenance of revolving funds.
I would like to underscore the facts that such income were
already considered as integral part of the revenue and financing
sources of the National Expenditure Program which I previously
submitted to Congress. Hence, the grant of new special provisions
authorizing the use of agency income and the establishment of
revolving funds over and above the agency appropriations
authorized in this Act shall effectively reduce the financing
sources of the 1994 GAA and, at the same time, increase the level
of expenditures of some agencies beyond the well-coordinated,
 rationalized levels for such agencies. This corresponding increases
the overall deficit of the National Government (Veto Message, p.
3).
Petitioners claim that the President acted with grave abuse of discretion when he
disallowed by his veto the "use of income" and the creation of "revolving fund" by
the Western Visayas State University and Leyte State Colleges when he allowed
other government offices, like the National Stud Farm, to use their income for their
operating expenses (Rollo, G.R. No. 113174, pp. 15-16).
There was no undue discrimination when the President vetoed said special
provisions while allowing similar provisions in other government agencies. If some
government agencies were allowed to use their income and maintain a revolving
fund for that purpose, it is because these agencies have been enjoying such
privilege before by virtue of the special laws authorizing such practices as
exceptions to the "one-fund policy" (e.g., R.A. No. 4618 for the National Stud Farm,
P.D. No. 902-A for the Securities and Exchange Commission; E.O. No. 359 for the
Department of Budget and Management's Procurement Service).
2. Veto of provision on 70% (administrative)/30% (contract) ratio for road
maintenance.
In the appropriation for the Department of Public Works and Highways, the
President vetoed the second paragraph of Special Provision No. 2, specifying the
30% maximum ration of works to be contracted for the maintenance of national
roads and bridges. The said paragraph reads as follows:
2. Release and Use of Road Maintenance Funds. Funds allotted for
the maintenance and repair of roads which are provided in this
Act for the Department of Public Works and Highways shall be
released to the respective Engineering District, subject to such
rules and regulations as may be prescribed by the Department of
Budget and Management. Maintenance funds for roads and
bridges shall be exempt from budgetary reserve.
Of the amount herein appropriated for the maintenance of
national roads and bridges, a maximum of thirty percent (30%)
shall be contracted out in accordance with guidelines to be issued
by the Department of Public Works and Highways. The balance
shall be used for maintenance by force account.
Five percent (5%) of the total road maintenance fund
appropriated herein to be applied across the board to the
allocation of each region shall be set aside for the maintenance of
roads which may be converted to or taken over as national roads
during the current year and the same shall be released to the
central office of the said department for eventual
sub-allotment to the concerned region and
district: PROVIDED, That any balance of the said five percent (5%)
shall be restored to the regions on a pro-rata basis for the
maintenance of existing national roads.
No retention or deduction as reserves or overhead expenses shall
be made, except as authorized by law or upon direction of the
President
(GAA of 1994, pp. 785-786; Emphasis supplied).
The President gave the following reason for the veto:
While I am cognizant of the well-intended desire of Congress to
impose certain restrictions contained in some special provisions, I
am equally aware that many programs, projects and activities of
agencies would require some degree of flexibility to ensure their
successful implementation and therefore risk their completion.
Furthermore, not only could these restrictions and limitations
derail and impede program implementation but they may also
result in a breach of contractual obligations.
D.1.a. A study conducted by the Infrastructure Agencies show that
for practical intent and purposes, maintenance by contract could
be undertaken to an optimum of seventy percent (70%) and the
remaining thirty percent (30%) by force account. Moreover, the
policy of maximizing implementation through contract
maintenance is a covenant of the Road and Road Transport
Program Loan from the Asian Development Bank (ADB Loan No.
1047-PHI-1990) and Overseas Economic Cooperation Fund (OECF
Loan No. PH-C17-199). The same is a covenant under the World
Bank (IBRD) Loan for the Highway Management Project (IBRD
Loan
No. PH-3430) obtained in 1992.
In the light of the foregoing and considering the policy of the
government to encourage and maximize private sector
participation in the regular repair and maintenance of
infrastructure facilities, I am directly vetoing the underlined
 second paragraph of Special Provision No. 2 of the Department of
Public Works and Highways (Veto Message, p. 11).
The second paragraph of Special Provision No. 2 brings to fore the divergence in
policy of Congress and the President. While Congress expressly laid down the
condition that only 30% of the total appropriation for road maintenance should be
contracted out, the President, on the basis of a comprehensive study, believed that
contracting out road maintenance projects at an option of 70% would be more
efficient, economical and practical.
The Special Provision in question is not an inappropriate provision which can be the
subject of a veto. It is not alien to the appropriation for road maintenance, and on
the other hand, it specified how the said item shall be expended — 70% by
administrative and 30% by contract.
The 1987 Constitution allows the addition by Congress of special provisions,
conditions to items in an expenditure bill, which cannot be vetoed separately from
the items to which they relate so long as they are "appropriate" in the budgetary
sense (Art. VII, Sec. 25[2]).
The Solicitor General was hard put in justifying the veto of this special provision. He
merely argued that the provision is a complete turnabout from an entrenched
practice of the government to maximize contract maintenance (Rollo, G.R. No.
113888, pp. 85-86). That is not a ground to veto a provision separate from the item
to which it refers.
The veto of the second paragraph of Special Provision No. 2 of the item for the
DPWH is therefore unconstitutional.
3. Veto of provision on purchase of medicines by AFP.
In the appropriation for the Armed Forces of the Philippines (AFP), the President
vetoed the special provision on the purchase by the AFP of medicines in compliance
with the Generics Drugs Law (R.A. No. 6675). The vetoed provision reads:
12. Purchase of Medicines. The purchase of medicines by all
Armed Forces of the Philippines units, hospitals and clinics shall
strictly comply with the formulary embodied in the National Drug
Policy of the Department of Health (GAA of 1994, p. 748).
According to the President, while it is desirable to subject the purchase of
medicines to a standard formulary, "it is believed more prudent to provide for a
transition period for its adoption and smooth implementation in the Armed Forces
of the Philippines" (Veto Message, p. 12).
The Special Provision which requires that all purchases of medicines by the AFP
should strictly comply with the formulary embodied in the National Drug Policy of
the Department of Health is an "appropriate" provision. it is a mere advertence by
Congress to the fact that there is an existing law, the Generics Act of 1988, that
requires "the extensive use of drugs with generic names through a rational system
of procurement and distribution." The President believes that it is more prudent to
provide for a transition period for the smooth implementation of the law in the case
of purchases by the Armed Forces of the Philippines, as implied by Section 11
(Education Drive) of the law itself. This belief, however, cannot justify his veto of
the provision on the purchase of medicines by the AFP.
Being directly related to and inseparable from the appropriation item on purchases
of medicines by the AFP, the special provision cannot be vetoed by the President
without also vetoing the said item (Bolinao Electronics Corporation v. Valencia, 11
SCRA 486 [1964]).
4. Veto of provision on prior approval of Congress for purchase of military
equipment.
In the appropriation for the modernization of the AFP, the President vetoed the
underlined proviso of Special Provision No. 2 on the "Use of Fund," which requires
the prior approval of Congress for the release of the corresponding modernization
funds, as well as the entire Special Provisions
No. 3 on the "Specific Prohibition":
2. Use of the Fund. Of the amount herein appropriated, priority
shall be given for the acquisition of AFP assets necessary for
protecting marine, mineral, forest and other resources within
Philippine territorial borders and its economic zone, detection,
prevention or deterrence of air or surface intrusions and to
support diplomatic moves aimed at preserving national dignity,
sovereignty and patrimony: PROVIDED, That the said
modernization fund shall not be released until a Table of
Organization and Equipment for FY 1994-2000 is submitted to and
approved by Congress.
3. Specific Prohibition. The said Modernization Fund shall not be
used for payment of six (6) additional S-211 Trainer planes, 18 SF-
260 Trainer planes and 150 armored personnel carriers (GAA of
1994, p. 747).
As reason for the veto, the President stated that the said condition and prohibition
violate the Constitutional mandate of non-impairment of contractual obligations,
and if allowed, "shall effectively alter the original intent of the AFP Modernization
Fund to cover all military equipment deemed necessary to modernize the Armed
Forces of the Philippines" (Veto Message, p. 12).
Petitioners claim that Special Provision No. 2 on the "Use of Fund" and Special
Provision No. 3 are conditions or limitations related to the item on the AFP
modernization plan.
The requirement in Special Provision No. 2 on the "Use of Fund" for the AFP
modernization program that the President must submit all purchases of military
equipment to Congress for its approval, is an exercise of the "congressional or
legislative veto." By way of definition, a congressional veto is a means whereby the
legislature can block or modify administrative action taken under a statute. It is a
form of legislative control in the implementation of particular executive actions. The
form may be either negative, that is requiring disapproval of the executive action,
or affirmative, requiring approval of the executive action. This device represents a
significant attempt by Congress to move from oversight of the executive to shared
administration (Dixon, The Congressional Veto and Separation of Powers: The
Executive on a Leash,
56 North Carolina Law Review, 423 [1978]).
A congressional veto is subject to serious questions involving the principle of
separation of powers.
However the case at bench is not the proper occasion to resolve the issues of the
validity of the legislative veto as provided in Special Provisions Nos. 2 and 3 because
the issues at hand can be disposed of on other grounds. Any provision blocking an
administrative action in implementing a law or requiring legislative approval of
executive acts must be incorporated in a separate and substantive bill. Therefore,
being "inappropriate" provisions, Special Provisions Nos. 2 and 3 were properly
vetoed.
As commented by Justice Irene Cortes in her memorandum as Amicus Curiae:
"What Congress cannot do directly by law it cannot do indirectly by attaching
conditions to the exercise of that power (of the President as Commander-in-Chief)
through provisions in the appropriation law."
Furthermore, Special Provision No. 3, prohibiting the use of the Modernization
Funds for payment of the trainer planes and armored personnel carriers, which
have been contracted for by the AFP, is violative of the Constitutional prohibition on
the passage of laws that impair the obligation of contracts (Art. III, Sec. 10), more
so, contracts entered into by the Government itself.
The veto of said special provision is therefore valid.
5. Veto of provision on use of savings to augment AFP pension funds.
In the appropriation for the AFP Pension and Gratuity Fund, the President vetoed
the new provision authorizing the Chief of Staff to use savings in the AFP to
augment pension and gratuity funds. The vetoed provision reads:
2. Use of Savings. The Chief of Staff, AFP, is authorized, subject to
the approval of the Secretary of National Defense, to use savings
in the appropriations provided herein to augment the pension
fund being managed by the AFP Retirement and Separation
Benefits System as provided under Sections 2(a) and 3 of P.D. No.
361 (GAA of 1994,
p. 746).
According to the President, the grant of retirement and separation benefits should
be covered by direct appropriations specifically approved for the purpose pursuant
to Section 29(1) of Article VI of the Constitution. Moreover, he stated that the
authority to use savings is lodged in the officials enumerated in Section 25(5) of
Article VI of the Constitution (Veto Message, pp. 7-8).
Petitioners claim that the Special Provision on AFP Pension and Gratuity Fund is a
condition or limitation which is so intertwined with the item of appropriation that it
could not be separated therefrom.
The Special Provision, which allows the Chief of Staff to use savings to augment the
pension fund for the AFP being managed by the AFP Retirement and Separation
Benefits System is violative of Sections 25(5) and 29(1) of the Article VI of the
Constitution.
Under Section 25(5), no law shall be passed authorizing any transfer of
appropriations, and under Section 29(1), no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law. While Section
25(5) allows as an exception the realignment of savings to augment items in the
general appropriations law for the executive branch, such right must and can be
exercised only by the President pursuant to a specific law.
6. Condition on the deactivation of the CAFGU's.
Congress appropriated compensation for the CAFGU's, including the payment of
separation benefits but it added the following Special Provision:
1. CAFGU Compensation and Separation Benefit. The
appropriation authorized herein shall be used for the
compensation of CAFGU's including the payment of their
separation benefit not exceeding one (1) year subsistence
allowance for the 11,000 members who will be deactivated in
1994. The Chief of Staff, AFP, shall, subject to the approval of the
Secretary of National Defense, promulgate policies and
procedures for the payment of separation benefit (GAA of 1994,
p. 740).
The President declared in his Veto Message that the implementation of this Special
Provision to the item on the CAFGU's shall be subject to prior Presidential approval
pursuant to P.D. No. 1597 and R.A.. No. 6758. He gave the following reasons for
imposing the condition:
I am well cognizant of the laudable intention of Congress in
proposing the amendment of Special Provision No. 1 of the
CAFGU. However, it is premature at this point in time of our peace
process to earmark and declare through special provision the
actual number of CAFGU members to be deactivated in CY 1994. I
understand that the number to be deactivated would largely
depend on the result or degree of success of the on-going peace
initiatives which are not yet precisely determinable today. I have
desisted, therefore, to directly veto said provisions because this
would mean the loss of the entire special provision to the
prejudice of its beneficient provisions. I therefore declare that the
actual implementation of this special provision shall be subject to
prior Presidential approval pursuant to the provisions of P.D. No.
1597 and
R.A. No. 6758 (Veto Message, p. 13).
Petitioners claim that the Congress has required the deactivation of the CAFGU's
when it appropriated the money for payment of the separation pay of the members
of thereof. The President, however, directed that the deactivation should be done
in accordance to his timetable, taking into consideration the peace and order
situation in the affected localities.
Petitioners complain that the directive of the President was tantamount to an
administrative embargo of the congressional will to implement the Constitution's
command to dissolve the CAFGU's (Rollo, G.R. No. 113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President cannot impair
or withhold expenditures authorized and appropriated by Congress when neither
the Appropriations Act nor other legislation authorize such impounding (Rollo, G.R.
No. 113888, pp. 15-16).
The Solicitor General contends that it is the President, as Commander-in-Chief of
the Armed Forces of the Philippines, who should determine when the services of
the CAFGU's are no longer needed (Rollo, G.R. No. 113888,
pp. 92-95.).
This is the first case before this Court where the power of the President to impound
is put in issue. Impoundment refers to a refusal by the President, for whatever
reason, to spend funds made available by Congress. It is the failure to spend or
obligate budget authority of any type (Notes: Impoundment of Funds, 86 Harvard
Law Review 1505 [1973]).
Those who deny to the President the power to impound argue that once Congress
has set aside the fund for a specific purpose in an appropriations act, it becomes
mandatory on the part of the President to implement the project and to spend the
money appropriated therefor. The President has no discretion on the matter, for
the Constitution imposes on him the duty to faithfully execute the laws.
In refusing or deferring the implementation of an appropriation item, the President
in effect exercises a veto power that is not expressly granted by the Constitution. As
a matter of fact, the Constitution does not say anything about impounding. The
source of the Executive authority must be found elsewhere.
Proponents of impoundment have invoked at least three principal sources of the
authority of the President. Foremost is the authority to impound given to him either
expressly or impliedly by Congress. Second is the executive power drawn from the
President's role as Commander-in-Chief. Third is the Faithful Execution Clause which
ironically is the same provision invoked by petitioners herein.
The proponents insist that a faithful execution of the laws requires that the
President desist from implementing the law if doing so would prejudice public
interest. An example given is when through efficient and prudent management of a
project, substantial savings are made. In such a case, it is sheer folly to expect the
President to spend the entire amount budgeted in the law (Notes: Presidential
Impoundment: Constitutional Theories and Political Realities, 61 Georgetown Law
Journal 1295 [1973]; Notes; Protecting the Fisc: Executive Impoundment and
Congressional Power, 82 Yale Law Journal 1686 [1973).
We do not find anything in the language used in the challenged Special Provision
that would imply that Congress intended to deny to the President the right to defer
or reduce the spending, much less to deactivate 11,000 CAFGU members all at once
in 1994. But even if such is the intention, the appropriation law is not the proper
vehicle for such purpose. Such intention must be embodied and manifested in
another law considering that it abrades the powers of the Commander-in-Chief and
there are existing laws on the creation of the CAFGU's to be amended. Again we
state: a provision in an appropriations act cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and R.A. No.
6758.
7. Condition on the appropriation for the Supreme Court, etc.
(a) In the appropriations for the Supreme Court, Ombudsman, COA, and CHR, the
Congress added the following provisions:
The Judiciary
xxx xxx xxx
Special Provisions
1. Augmentation of any Item in the Court's Appropriations. Any
savings in the appropriations for the Supreme Court and the
Lower Courts may be utilized by the Chief Justice of the Supreme
Court to augment any item of the Court's appropriations for (a)
printing of decisions and publication of "Philippine Reports"; (b)
Commutable terminal leaves of Justices and other personnel of
the Supreme Court and payment of adjusted pension rates to
retired Justices entitled thereto pursuant to Administrative
Matter No. 91-8-225-C.A.; (c) repair, maintenance, improvement
and other operating expenses of the courts' libraries, including
purchase of books and periodicals; (d) purchase, maintenance and
improvement of printing equipment; (e) necessary expenses for
the employment of temporary employees, contractual and casual
employees, for judicial administration; (f) maintenance and
improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the Chief Justice,
attendance in international conferences and conduct of training
programs; (h) commutable transportation and representation
allowances and fringe benefits for Justices, Clerks of Court, Court
Administrator, Chiefs of Offices and other Court personnel in
accordance with the rates prescribed by law; and (i) compensation
of attorney-de-officio: PROVIDED, That as mandated by LOI No.
489 any increase in salary and allowances shall be subject to the
usual procedures and policies as provided for under
P.D. No. 985 and other pertinent laws (GAA of 1994, p. 1128;
Emphasis supplied).
xxx xxx xxx
Commission on Audit
xxx xxx xxx
5. Use of Savings. The Chairman of the Commission on Audit is
hereby authorized, subject to appropriate accounting and auditing
rules and regulations, to use savings for the payment of fringe
benefits as may be authorized by law for officials and personnel of
the Commission (GAA of 1994, p. 1161; Emphasis supplied).
xxx xxx xxx
Office of the Ombudsman
xxx xxx xxx
6. Augmentation of Items in the appropriation of the Office of the
Ombudsman. The Ombudsman is hereby authorized, subject to
appropriate accounting and auditing rules and regulations to
augment items of appropriation in the Office of the Ombudsman
from savings in other items of appropriation actually released, for:
(a) printing and/or publication of decisions, resolutions, training
and information materials; (b) repair, maintenance and
improvement of OMB Central and Area/Sectoral facilities; (c)
purchase of books, journals, periodicals and equipment;
(d) payment of commutable representation and transportation
allowances of officials and employees who by reason of their
positions are entitled thereto and fringe benefits as may be
authorized specifically by law for officials and personnel of OMB
pursuant to Section 8 of Article IX-B of the Constitution; and (e)
for other official purposes subject to accounting and auditing rules
and regulations (GAA of 1994, p. 1174; Emphasis supplied).
xxx xxx xxx
 Commission on Human Rights
xxx xxx xxx
1. Use of Savings. The Chairman of the Commission on Human
Rights (CHR) is hereby authorized, subject to appropriate
accounting and auditing rules and regulations, to augment any
item of appropriation in the office of the CHR from savings in
other items of appropriations actually released, for: (a) printing
and/or publication of decisions, resolutions, training materials and
educational publications; (b) repair, maintenance and
improvement of Commission's central and regional facilities; (c)
purchase of books, journals, periodicals and equipment, (d)
payment of commutable representation and transportation
allowances of officials and employees who by reason of their
positions are entitled thereto and fringe benefits, as may be
authorized by law for officials and personnel of CHR, subject to
accounting and auditing rules and regulations (GAA of 1994, p.
1178; Emphasis supplied).
In his Veto Message, the President expressed his approval of the conditions
included in the GAA of 1994. He noted that:
The said condition is consistent with the Constitutional injunction
prescribed under Section 8, Article IX-B of the Constitution which
states that "no elective or appointive public officer or employee
shall receive additional, double, or indirect compensation unless
specifically authorized by law." I am, therefore, confident that the
heads of the said offices shall maintain fidelity to the law and
faithfully adhere to the well-established principle on
compensation standardization (Veto Message, p. 10).
Petitioners claim that the conditions imposed by the President violated the
independence and fiscal autonomy of the Supreme Court, the Ombudsman, the
COA and the CHR.
In the first place, the conditions questioned by petitioners were placed in the GAB
by Congress itself, not by the President. The Veto Message merely highlighted the
Constitutional mandate that additional or indirect compensation can only be given
pursuant to law.
In the second place, such statements are mere reminders that the disbursements of
appropriations must be made in accordance with law. Such statements may, at
worse, be treated as superfluities.
(b) In the appropriation for the COA, the President imposed the condition that the
implementation of the budget of the COA be subject to "the guidelines to be issued
by the President."
The provisions subject to said condition reads:
xxx xxx xxx
3. Revolving Fund. The income of the Commission on Audit
derived from sources authorized by the Government Auditing
Code of the Philippines (P.D. No. 1445) not exceeding Ten Million
Pesos (P10,000,000) shall be constituted into a revolving fund
which shall be used for maintenance, operating and other
incidental expenses to enhance audit services and audit-related
activities. The fund shall be deposited in an authorized
government depository ban, and withdrawals therefrom shall be
made in accordance with the procedure prescribed by law and
implementing rules and regulations: PROVIDED,That any interests
earned on such deposit shall be remitted at the end of each
quarter to the national Treasury and shall accrue to the General
Fund: PROVIDED FURTHER, That the Commission on Audit shall
submit to the Department of Budget and Management a quarterly
report of income and expenditures of said revolving fund (GAA of
1994, pp. 1160-1161).
The President cited the "imperative need to rationalize" the implementation,
applicability and operation of use of income and revolving funds. The Veto Message
stated:
. . . I have observed that there are old and long existing special
provisions authorizing the use of income and the creation of
revolving funds. As a rule, such authorizations should be
discouraged. However, I take it that these authorizations have
legal/statutory basis aside from being already a vested right to the
agencies concerned which should not be jeopardized through the
Veto Message. There is, however, imperative need to rationalize
their implementation, applicability and operation. Thus, in order
to substantiate the purpose and intention of said provisions, I
hereby declare that the operationalization of the following
 provisions during budget implementation shall be subject to
the guidelines to be issued by the President pursuant to Section
35, Chapter 5, Book VI of E.O. No. 292 and Sections 65 and 66 of
P.D. No. 1445 in relation to Sections 2 and 3 of the General
Provisions of this Act (Veto Message, p. 6; Emphasis Supplied.)
(c) In the appropriation for the DPWH, the President imposed the condition that in
the implementation of DPWH projects, the administrative and engineering
overhead of 5% and 3% "shall be subject to the necessary administrative guidelines
to be formulated by the Executive pursuant to existing laws." The condition was
imposed because the provision "needs further study" according to the President.
The following provision was made subject to said condition:
9. Engineering and Administrative Overhead. Not more than five
percent (5%) of the amount for infrastructure project released by
the Department of Budget and Management shall be deducted by
DPWH for administrative overhead, detailed engineering and
construction supervision, testing and quality control, and the like,
thus insuring that at least ninety-five percent (95%) of the
released fund is available for direct implementation of the
project. PROVIDED, HOWEVER, That for school buildings, health
centers, day-care centers and barangay halls, the deductible
amount shall not exceed three percent (3%).
Violation of, or non-compliance with, this provision shall subject
the government official or employee concerned to administrative,
civil and/or criminal sanction under Sections 43 and 80, Book VI of
E.O.
No. 292 (GAA of 1994, p. 786).
(d) In the appropriation for the National Housing Authority (NHA), the President
imposed the condition that allocations for specific projects shall be released and
disbursed "in accordance with the housing program of the government, subject to
prior Executive approval."
The provision subject to the said condition reads:
3. Allocations for Specified Projects. The following allocations for
the specified projects shall be set aside for corollary works and
used exclusively for the repair, rehabilitation and construction of
buildings, roads, pathwalks, drainage, waterworks systems,
facilities and amenities in the area: PROVIDED, That any road to
be constructed or rehabilitated shall conform with the
specifications and standards set by the Department of Public
Works and Highways for such kind of
road: PROVIDED, FURTHER, That savings that may be available in
the future shall be used for road repair, rehabilitation and
construction:
(1) Maharlika Village Road —
Not less than P5,000,000
(2) Tenement Housing Project
(Taguig) — Not less than
P3,000,000
(3) Bagong Lipunan
Condominium Project (Taguig)
— Not less than P2,000,000
4. Allocation of Funds. Out of the amount appropriated for the
implementation of various projects in resettlement areas, Seven
Million Five Hundred Thousand Pesos (P7,500,000) shall be
allocated to the Dasmariñas Bagong Bayan resettlement area,
Eighteen Million Pesos (P18,000,000) to the Carmona Relocation
Center Area (Gen. Mariano Alvarez) and Three Million Pesos
(P3,000,000) to the Bulihan Sites and Services, all of which will be
for the cementing of roads in accordance with DPWH standards.
5. Allocation for Sapang Palay. An allocation of Eight Million Pesos
(P8,000,000) shall be set aside for the asphalting of seven (7)
kilometer main road of Sapang Palay, San Jose Del Monte,
Bulacan
(GAA of 1994, p. 1216).
The President imposed the conditions: (a) that the "operationalization" of the
special provision on revolving funds of the COA "shall be subject to guidelines to be
issued by the President pursuant to Section 35, Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to Sections 2
and 3 of the General Provisions of this Act" (Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision No. 9 of the
DPWH on the mandatory retention of 5% and 3% of the amounts released by said
Department "be subject to the necessary administrative guidelines to be
formulated by the Executive pursuant to existing law" (Rollo, G.R. No. 113888; pp.
10, 14-16); and (c) that the appropriations authorized for the NHA can be released
only "in accordance with the housing program of the government subject to prior
Executive approval" (Rollo, G.R. No. 113888, pp. 10-11;
14-16).
The conditions objected to by petitioners are mere reminders that the
implementation of the items on which the said conditions were imposed, should be
done in accordance with existing laws, regulations or policies. They did not add
anything to what was already in place at the time of the approval of the GAA of
1994.
There is less basis to complain when the President said that the expenditures shall
be subject to guidelines he will issue. Until the guidelines are issued, it cannot be
determined whether they are proper or inappropriate. The issuance of
administrative guidelines on the use of public funds authorized by Congress is
simply an exercise by the President of his constitutional duty to see that the laws
are faithfully executed (1987 Constitution, Art. VII, Sec. 17; Planas v. Gil 67 Phil. 62
[1939]). Under the Faithful Execution Clause, the President has the power to take
"necessary and proper steps" to carry into execution the law (Schwartz, On
Constitutional Law, p. 147 [1977]). These steps are the ones to be embodied in the
guidelines.
Even if Guingona and Gonzales are considered hard cases that make bad laws and
should be reversed, such reversal cannot nullify prior acts done in reliance thereof.
WHEREFORE, the petitions are DISMISSED, except with respect to
(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the annulment of the
veto of the special provision on debt service specifying that the fund therein
appropriated "shall be used for payment of the principal and interest of foreign and
domestic indebtedness" prohibiting the use of the said funds "to pay for the
liabilities of the Central Bank Board of Liquidators", and (2) G.R. No. 113888 only
insofar as it prays for the annulment of the veto of: (a) the second paragraph of
Special Provision No. 2 of the item of appropriation for the Department of Public
Works and Highways (GAA of 1994, pp. 785-786); and (b) Special Provision No. 12
on the purchase of medicines by the Armed Forces of the Philippines (GAA of 1994,
p. 748), which is GRANTED.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Kapunan and Mendoza, JJ., concur.

IV

Petitioners chose to avail of the special civil actions but those remedies can be used
only when respondents have acted "without or in excess" of jurisdiction, or "with Separate Opinions
grave abuse of discretion," (Revised Rules of Court,
Rule 65, Section 2). How can we begrudge the President for vetoing the Special
Provision on the appropriation for debt payment when he merely followed our
decision in Gonzales? How can we say that Congress has abused its discretion when
PADILLA, J., concurring and dissenting:
it appropriated a bigger sum for debt payment than the amount appropriated for
education, when it merely followed our dictum in Guingona?
I concur with the ponencia of Mr. Justice Camilo D. Quiason except in so far as it re-
affirms the Court's decision in Gonzalez v. Macaraig (191 SCRA 452).
Article 8 of the Civil Code of Philippines, provides:

Sec. 27(2), Art. VI of the Constitution states:

Judicial decisions applying or interpreting the laws or the
constitution shall from a part of the legal system of the
Philippines. 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 effect the item or items to which he does not object.
The Court's interpretation of the law is part of that law as of the date of its
enactment since the court's interpretation merely establishes the contemporary
legislative intent that the construed law purports to carry into effect (People v. In my dissenting opinion in Gonzalez, I stated that:
Licera, 65 SCRA 270 [1975]). Decisions of the Supreme Court assume the same
authority as statutes (Floresca v. Philex Mining Corporation, 136 SCRA 141 [1985]).
 The majority opinion positions the veto questioned in this case
within the scope of Section 27(2) [Article VI of the Constitution]. I
do not see how this can be done without doing violence to the
constitutional design. The distinction between an item-veto and
a provision veto has been traditionally recognized in constitutional
litigation and budgetary practice. As stated by Mr. Justice
Sutherland, speaking for the U.S. Supreme Court in Bengzon
v. Secretary of Justice, 299 U.S. 410-416:
. . . An item of an appropriation bill obviously
means an item which in itself is a specific
appropriation of money, not some general
provisions of law which happens to be put into
an appropriation bill . . .
When the Constitution in Section 27(2) empowers the President
to veto any particular item or items in the appropriation act, it
does not
confer — in fact, it excludes — the power to veto any particular
provision or provisions in said act.
In an earlier case, Sarmiento v. Mison, et al., 156 SCRA 549, this
court referred to its duty to construe the Constitution, not in
accordance with how the executive or the legislative would want
it construed, but in accordance with what it says and provides.
When the Constitution states that the President has the power to
veto any particular item or items in the appropriation act, this
must be taken as a component of that delicate balance of power
between the executive and legislative, so that, for this Court to
construe Sec. 27(2) of the Constitution as also empowering the
President to veto any particular provision or provisions in the
appropriations act, is to load the scale in favor of the executive, at
the expense of that delicate balance of power.
I therefore disagree with the majority's pronouncements which would validate the
veto by the President of specific provisions in the appropriations act based on the
contention that such are "inappropriate provisions." Even assuming, for the sake of
argument, that a provision in the appropriations act is "inappropriate" from the
Presidential standpoint, it is still a provision, not an item, in an appropriations act
and, therefore, outside the veto power of the Executive.
VITUG, J., concurring:
I concur on the points so well expounded by a most respected colleague, Mr. Justice
Camilo D. Quiason. I should like to highlight a bit, however, that part of
the ponencia dealing on the Countrywide Development Fund or, so commonly
referred to as, the infamous "pork barrel".
I agree that it lies with Congress to determine in an appropriation act the activities
and the projects that are desirable and may thus be funded. Once, however, such
identification and the corresponding appropriation therefore is done, the legislative
act is completed and it ends there. Thereafter, the Executive is behooved, with
exclusive responsibility and authority, to see to it that the legislative will is properly
carried out. I cannot subscribe to another theory invoked by some quarters that, in
so implementing the law, the Executive does so only by way of delegation. Congress
neither may delegate what it does not have nor may encroach on the powers of a
co-equal, independent and coordinate branch.
Within its own sphere, Congress acts as a body, not as the individuals that comprise
it, in any action or decision that can bind it, or be said to have been done by it,
under its constitutional authority. Even assuming that overseeing the laws it enacts
continues to be a legislative process, one that I find difficult to accept, it is Congress
itself, not any of its members, that must exercise that function.
I cannot debate the fact that the members of Congress, more than the President
and his colleagues, would have the best feel on the needs of their own respective
cosntituents. I see no legal obstacle, however, in their making, just like anyone else,
the proper recommendations to albeit not necessarily conclusive on, the President
for the purpose. Neother would it be objectionable for Congrss, by law, to
appropriate funds for specific projects as it may be minded; to give that authoriy,
however, to the individual members of Congress in whatever guise, I am afraid,
would be constitutionality impermissible.
LAWYERS AGAINST MONOPOLY
AND POVERTY (LAMP), ET AL., Petitioners,
-VS-
THE SECRETARY OF BUDGET AND MANAGEMENT, ET AL., Respondents
DECISION
MENDOZA, J.:
For consideration of the Court is an original action for certiorari assailing the
constitutionality and legality of the implementation of the Priority Development
Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the General
Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and
Poverty (LAMP), a group of lawyers who have banded together with a mission of
dismantling all forms of political, economic or social monopoly in the country, [1] also
sought the issuance of a writ of preliminary injunction or temporary restraining order
to enjoin respondent Secretary of the Department of Budget and
Management (DBM) from making, and, thereafter, releasing budgetary allocations to
individual members of Congress as pork barrel funds out of PDAF. LAMP likewise
aimed to stop the National Treasurer and the Commission on Audit (COA) from
enforcing the questioned provision.
On September 14, 2004, the Court required respondents, including the President of
the Senate and the Speaker of the House of Representatives, to comment on the
petition. On April 7, 2005, petitioner filed a Reply thereto.[2] On April 26, 2005, both
parties were required to submit their respective memoranda.
The GAA of 2004 contains the following provision subject of this petition:
PRIORITY DEVELOPMENT ASSISTANCE FUND
For fund requirements of priority development programs and
projects, as indicated hereunder ₱8,327,000,000.00
Xxxxx
Special Provision
1. Use and Release of the Fund. The amount herein appropriated
shall be used to fund priority programs and projects or to fund the
required counterpart for foreign-assisted programs and projects:
PROVIDED, That such amount shall be released directly to the
implementing agency or Local Government Unit
concerned: PROVIDED, FURTHER, That the allocations authorized
herein may be realigned to any expense class, if deemed necessary:
PROVIDED FURTHERMORE, That a maximum of ten percent (10%)
of the authorized allocations by district may be used for
procurement of rice and other basic commodities which shall be
purchased from the National Food Authority.
Petitioners Position
According to LAMP, the above provision is silent and, therefore, prohibits an
automatic or direct allocation of lump sums to individual senators and congressmen
for the funding of projects. It does not empower individual Members of Congress to
propose, select and identify programs and projects to be funded out of PDAF. In
previous GAAs, said allocation and identification of projects were the main features
of the pork barrel system technically known as Countrywide Development Fund
(CDF). Nothing of the sort is now seen in the present law (R.A. No. 9206 of CY
2004).[3] In its memorandum, LAMP insists that [t]he silence in the law of direct or
even indirect participation by members of Congress betrays a deliberate intent on
the part of the Executive and the Congress to scrap and do away with the pork barrel
system.[4] In other words, [t]he omission of the PDAF provision to specify sums as
allocations to individual Members of Congress is a casus omissus signifying an
omission intentionally made by Congress that this Court is forbidden to
supply.[5] Hence, LAMP is of the conclusion that the pork barrel has become legally
defunct under the present state of GAA 2004.[6]
 LAMP further decries the supposed flaws in the implementation of the
provision, namely: 1) the DBM illegally made and directly released budgetary
allocations out of PDAF in favor of individual Members of Congress; and 2) the latter
do not possess the power to propose, select and identify which projects are to be
actually funded by PDAF.
For LAMP, this situation runs afoul against the principle of separation of
powers because in receiving and, thereafter, spending funds for their chosen
projects, the Members of Congress in effect intrude into an executive function. In
other words, they cannot directly spend the funds, the appropriation for which was
made by them. In their individual capacities, the Members of Congress cannot
virtually tell or dictate upon the Executive Department how to spend taxpayers
money.[7] Further, the authority to propose and select projects does not pertain to
legislation. It is, in fact, a non-legislative function devoid of constitutional
sanction,[8] and, therefore, impermissible and must be considered nothing less than
malfeasance. The proposal and identification of the projects do not involve the
making of laws or the repeal and amendment thereof, which is the only function
given to the Congress by the Constitution. Verily, the power of appropriation granted
to Congress as a collegial body, does not include the power of the Members thereof
to individually propose, select and identify which projects are to be actually
implemented and funded - a function which essentially and exclusively pertains to
the Executive Department.[9] By allowing the Members of Congress to receive direct
allotment from the fund, to propose and identify projects to be funded and to
perform the actual spending of the fund, the implementation of the PDAF provision
becomes legally infirm and constitutionally repugnant.
Respondents Position
[10]
For their part, the respondents contend that the petition miserably lacks
legal and factual grounds. Although they admit that PDAF traced its roots to
[11]
CDF, they argue that the former should not be equated with pork barrel, which has
gained a derogatory meaning referring to government projects affording political
opportunism.[12] In the petition, no proof of this was offered. It cannot be gainsaid
then that the petition cannot stand on inconclusive media reports, assumptions and
conjectures alone. Without probative value, media reports cited by the petitioner
deserve scant consideration especially the accusation that corrupt legislators have
allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should
decline the petitioners plea to take judicial notice of the supposed iniquity of PDAF
because there is no concrete proof that PDAF, in the guise of pork barrel, is a source
of dirty money for unscrupulous lawmakers and other officials who tend to misuse
their allocations. These facts have no attributes of sufficient notoriety or general
recognition accepted by the public without qualification, to be subjected to judicial
notice. This applies, a fortiori, to the claim that Members of Congress are
beneficiaries of commissions (kickbacks) taken out of the PDAF allocations and
releases and preferred by favored contractors representing from 20% to 50% of the
approved budget for a particular project. [13] Suffice it to say, the perceptions of LAMP
on the implementation of PDAF must not be based on mere speculations circulated
in the news media preaching the evils of pork barrel. Failing to present even an iota
of proof that the DBM Secretary has been releasing lump sums from PDAF directly or
indirectly to individual Members of Congress, the petition falls short of its cause.
Likewise admitting that CDF and PDAF are appropriations for substantially
similar, if not the same, beneficial purposes, [14] the respondents invoke Philconsa v.
Enriquez,[15] where CDF was described as an imaginative and innovative process or
mechanism of implementing priority programs/projects specified in the
law. In Philconsa, the Court upheld the authority of individual Members of Congress
to propose and identify priority projects because this was merely recommendatory
in nature. In said case, it was also recognized that individual members of Congress far
more than the President and their congressional colleagues were likely to be
knowledgeable about the needs of their respective constituents and the priority to
be given each project.
The Issues

The respondents urge the Court to dismiss the petition for its failure to
establish factual and legal basis to support its claims, thereby lacking an essential
requisite of judicial reviewan actual case or controversy.
The Courts Ruling
To the Court, the case boils down to these issues: 1) whether or not the
mandatory requisites for the exercise of judicial review are met in this case; and 2)
whether or not the implementation of PDAF by the Members of Congress
is unconstitutional and illegal.
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
the standing to question 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 the earliest opportunity; and (4) the issue of
[16]
constitutionality must be the very lis mota of the case.
An aspect of the case-or-controversy requirement is the requisite of
ripeness. In the United States, courts are centrally concerned with whether a case
involves uncertain contingent future events that may not occur as anticipated, or
indeed may not occur at all. Another concern is the evaluation of the twofold aspect
of ripeness: first, the fitness of the issues for judicial decision; and second, the
hardship to the parties entailed by withholding court consideration. In our
jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the
plaintiff. Hence, a question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it.[17]
In this case, the petitioner contested the implementation of an alleged
unconstitutional statute, as citizens and taxpayers. According to LAMP, the practice
of direct allocation and release of funds to the Members of Congress and the
authority given to them to propose and select projects is the core of the laws flawed
execution resulting in a serious constitutional transgression involving the
expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be
adversely affected by this. A finding of unconstitutionality would necessarily be
tantamount to a misapplication of public funds which, in turn, cause injury or
hardship to taxpayers. This affords ripeness to the present controversy.
Further, the allegations in the petition do not aim to obtain sheer
legal opinion in the nature of advice concerning legislative or executive action. The
possibility of constitutional violations in the implementation of PDAF surely involves
the interplay of legal rights susceptible of judicial resolution. For LAMP, this is the
right to recover public funds possibly misapplied by no less than the Members of
Congress. Hence, without prejudice to other recourse against erring public officials,
allegations of illegal expenditure of public funds reflect a concrete injury that may
have been committed by other branches of government before the court
intervenes. The possibility that this injury was indeed committed cannot be
discounted. The petition complains of illegal disbursement of public funds derived
from taxation and this is sufficient reason to say that there indeed exists a definite,
concrete, real or substantial controversy before the Court.
Anent locus standi, the rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. [18] The gist of
the question of standing is whether a party alleges such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[19] In public suits, the plaintiff, representing the
general public, asserts a public right in assailing an allegedly illegal official action. The
plaintiff may be a person who is affected no differently from any other person, and
could be suing as a stranger, or as a citizen or taxpayer.[20] Thus, 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.[21] 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
[22]
statute.
Here, the sufficient interest preventing the illegal expenditure of money
raised by taxation required in taxpayers suits is established. Thus, in the claim that
PDAF funds have been illegally disbursed and wasted through the enforcement of an
invalid or unconstitutional law, LAMP should be allowed to sue.The case of Pascual
v. Secretary of Public Works[23] is authority in support of the petitioner:
In the determination of the degree of interest essential to
give the requisite standing to attack the constitutionality of a
statute, the general rule is that not only persons individually
affected, but also taxpayers have sufficient interest in preventing
the illegal expenditures of moneys raised by taxation and may
therefore question the constitutionality of statutes
requiring expenditure of public moneys. [11 Am. Jur. 761,
Emphasis supplied.]
Lastly, the Court is of the view that the petition poses issues impressed with
paramount public interest. The ramification of issues involving the unconstitutional
spending of PDAF deserves the consideration of the Court, warranting the
assumption of jurisdiction over the petition.
Now, on the substantive issue.
The powers of government are generally divided into three branches: the
Legislative, the Executive and the Judiciary. Each branch is supreme within its own
sphere being independent from one another and it is this supremacy which enables
the courts to determine whether a law is constitutional or unconstitutional. [24] The
Judiciary is the final arbiter on the question of whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.[25]
With these long-established precepts in mind, the Court now goes to the
crucial question: In allowing the direct allocation and release of PDAF funds to the
Members of Congress based on their own list of proposed projects, did the
implementation of the PDAF provision under the GAA of 2004 violate the
Constitution or the laws?
The Court rules in the negative.
In determining whether or not a statute is unconstitutional, the Court does
not lose sight of the presumption of validity accorded to statutory acts of
Congress. In Farias v. The Executive Secretary,[26] the Court held that:
Every statute is presumed valid. The presumption is that
the legislature intended to enact a valid, sensible and just law and
one which operates no further than may be necessary to effectuate
the specific purpose of the law. Every presumption should be
indulged in favor of the constitutionality and the burden of proof
is on the party alleging that there is a clear and unequivocal
breach of the Constitution.
To justify the nullification of the law or its implementation, there must be a
clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in
the sufficiency of proof establishing unconstitutionality, the Court must sustain
legislation because to invalidate [a law] based on x x x baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the
executive which approved it.[27] This presumption of constitutionality can be
overcome only by the clearest showing that there was indeed an infraction of the
Constitution, and only when such a conclusion is reached by the required majority

may the Court pronounce, in the discharge of the duty it cannot escape, that the
challenged act must be struck down.[28]
The petition is miserably wanting in this regard. LAMP would have the Court
declare the unconstitutionality of the PDAFs enforcement based on the absence of
express provision in the GAA allocating PDAF funds to the Members of Congress and
the latters encroachment on executive power in proposing and selecting projects to
be funded by PDAF. Regrettably, these allegations lack substantiation. No convincing
proof was presented showing that, indeed, there were direct releases of funds to the
Members of Congress, who actually spend them according to their sole
discretion. Not even a documentation of the disbursement of funds by the DBM in
favor of the Members of Congress was presented by the petitioner to convince the
Court to probe into the truth of their claims. Devoid 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 Court cannot indulge the
petitioners request for rejection of a law which is outwardly legal and capable of
lawful enforcement. In a case like this, the Courts hands are tied in deference to the
presumption of constitutionality lest the Court commits unpardonable judicial
legislation. The Court is not endowed with the power of clairvoyance to divine from
scanty allegations in pleadings where justice and truth lie. [29] Again, newspaper or
electronic reports showing the appalling effects of PDAF cannot be appreciated by
the Court, not because of any issue as to their truth, accuracy, or impartiality, but for
the simple reason that facts must be established in accordance with the rules of
evidence.[30]
Hence, absent a clear showing that an offense to the principle of separation
of powers was committed, much less tolerated by both the Legislative and Executive,
the Court is constrained to hold that a lawful and regular government budgeting and
appropriation process ensued during the enactment and all throughout the
Under the Constitution, the power of appropriation is vested in the Legislature,
implementation of the GAA of 2004. The process was explained in this wise,
subject to the requirement that appropriation bills originate exclusively in the House
in Guingona v. Carague:[31]
of Representatives with the option of the Senate to propose or concur with
1. Budget preparation. The first step is essentially tasked
upon the Executive Branch and covers the estimation of
government revenues, the determination of budgetary priorities
and activities within the constraints imposed by available
revenues and by borrowing limits, and the translation of desired
priorities and activities into expenditure levels.
Budget preparation starts with the budget call issued by
the Department of Budget and Management. Each agency is
required to submit agency budget estimates in line with the
requirements consistent with the general ceilings set by the
Development Budget Coordinating Council (DBCC).
With regard to debt servicing, the DBCC staff, based on the
macro-economic projections of interest rates (e.g. LIBOR rate) and
estimated sources of domestic and foreign financing, estimates
debt service levels. Upon issuance of budget call, the Bureau of
Treasury computes for the interest and principal payments for the
year for all direct national government borrowings and other
liabilities assumed by the same.
2. Legislative authorization. At this stage, Congress enters
the picture and deliberates or acts on the budget proposals of the
President, and 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.
xxx
3. Budget Execution. Tasked on the Executive, the third
phase of the budget process covers the various operational aspects
of budgeting. The establishment of obligation authority ceilings,
the evaluation of work and financial plans for individual activities,
the continuing review of government fiscal position, the regulation
of funds releases, the implementation of cash payment schedules,
and other related activities comprise this phase of the budget cycle.
4. Budget accountability. The fourth phase refers to the
evaluation of actual performance and initially approved work
targets, obligations incurred, personnel hired and work
accomplished are compared with the targets set at the time the
agency budgets were approved.
amendments.[32] While the budgetary process commences from the proposal While the Court is not unaware of the yoke caused by graft and corruption,
submitted by the President to Congress, it is the latter which concludes the exercise the evils propagated by a piece of valid legislation cannot be used as a tool to
by crafting an appropriation act it may deem beneficial to the nation, based on its overstep constitutional limits and arbitrarily annul acts of Congress. Again, all
own judgment, wisdom and purposes. Like any other piece of legislation, the presumptions are indulged in favor of constitutionality; one who attacks a statute,
appropriation act may then be susceptible to objection from the branch tasked to alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that
implement it, by way of a Presidential veto. Thereafter, budget execution comes a law may work hardship does not render it unconstitutional; that if any reasonable
under the domain of the Executive branch which deals with the operational aspects basis may be conceived which supports the statute, it will be upheld, and the
of the cycle including the allocation and release of funds earmarked for various challenger must negate all possible bases; that the courts are not concerned with the
projects. Simply put, from the regulation of fund releases, the implementation of wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation
payment schedules and up to the actual spending of the funds specified in the law, of the constitution in favor of the constitutionality of legislation should be
the Executive takes the wheel. The DBM lays down the guidelines for the adopted.[34]
disbursement of the fund. The Members of Congress are then requested by the There can be no question as to the patriotism and good motive of the
President to recommend projects and programs which may be funded from the petitioner in filing this petition. Unfortunately, the petition must fail based on the
PDAF. The list submitted by the Members of Congress is endorsed by the Speaker of foregoing reasons.
the House of Representatives to the DBM, which reviews and determines whether
such list of projects submitted are consistent with the guidelines and the priorities
WHEREFORE, the petition is DISMISSED without pronouncement as to costs.
set by the Executive.[33] This demonstrates the power given to the President to
execute appropriation laws and therefore, to exercise the spending per se of the
SO ORDERED.
budget.
As applied to this case, the petition is seriously wanting in establishing that individual
Members of Congress receive and thereafter spend funds out of PDAF. Although the
possibility of this unscrupulous practice cannot be entirely discounted, surmises and
conjectures are not sufficient bases for the Court to strike down the practice for being
offensive to the Constitution. Moreover, the authority granted the Members of
Congress to propose and select projects was already upheld in Philconsa. This
remains as valid case law. The Court sees no need to review or reverse the standing
pronouncements in the said case. So long as there is no showing of a direct
participation of legislators in the actual spending of the budget, the constitutional
boundaries between the Executive and the Legislative in the budgetary process
remain intact.
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.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 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 system‘s
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 legislator‘s 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.7Some 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 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 legislator‘s 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 1960‘s, 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 lump-sum allocations to individual legislators began, with
each assemblyman receiving ₱500,000.00. 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
assemblyman‘s locality. It has been further reported that "Congressional
Pork Barrel" projects under the SLDP also began to cover not only public
works projects, or so- called "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 lump-sum appropriations of ₱480 Million
and ₱240 Million, respectively, for the funding of development projects in
the Mindanao and Visayas areas in 1989. It has been documented 23 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 GAA24 with an initial funding of
₱2.3 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 receiving ₱12.5 Million each in CDF funds,
while Senators were receiving ₱18 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 ₱12.5 Million each in
CDF funds, Senators, ₱18 Million each, and the Vice-President, ₱20 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 Vice-
President, 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, 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 ministration‘s 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. 38 Examples of these CIs are
the Department of Education (DepEd) School Building Fund, the
Congressional Initiative Allocations, the Public Works Fund, the El Niño
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 re-enactment48 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 ₱250 Million of the
₱500 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" 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 into a
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 Vice-President: Representatives
were given ₱70 Million each, broken down into ₱40 Million for "hard
projects" and ₱30 Million for "soft projects"; while ₱200 Million was given
to each Senator as well as the Vice-President, with a ₱100 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 ₱200 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 term‘s
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
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 ₱3.6
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 ₱10 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 investigation99covering 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-owned-and-controlled corporations (GOCCs).101 The
total releases covered by the audit amounted to ₱8.374 Billion in PDAF and
₱32.664 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 A‘s 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 latter‘s endorsement and without considering their
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 ₱6.156 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
₱900 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 Executive‘s 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 Executive‘s 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 off-budget, 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
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 Court‘s 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 Court‘s 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 Court‘s 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 Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided
by the Court unless there is compliance with the legal requisites for judicial
inquiry,117 namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing
to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ; and (d) the issue of
constitutionality must be the very lis mota of the case.118 Of these requisites, case
law states that the first two are the most important119and, therefore, shall be
discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution
which pertinently states that "judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable
and enforceable x x x." Jurisprudence provides that an actual case or controversy is
one which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.121 In other words, "there must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the 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 President‘s 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?
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. You‘ve 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 system‘s flaws
have never before been magnified. To the Court‘s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the government‘s 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 constitutionally-
mandated audit arm of the government. In Delos Santos v. CoA, 131 a recent case
wherein the Court upheld the CoA‘s 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 constitutionally-created, such as the CoA, not
only on the basis of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when the CoA has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, that this Court entertains a petition questioning its rulings. x x x.
(Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to
be sufficient.
The Court also finds the third exception to be applicable largely due to the practical
need for a definitive ruling on the system‘s 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 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."137 The situation similarly holds true to these
cases. Indeed, the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are capable of
repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "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
budget-related 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 perform its duty. Ultimately, it is the Court‘s 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 Chairperson‘s 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 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,
Philconsa‘s 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 Vitug‘s 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 Philconsa‘s 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 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
fund’s 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,164belongs the power to make laws; to the
executive branch of government, through the President, 165 belongs the power to
enforce laws; and to the judicial branch of government, through the
Court,166 belongs the power to interpret laws. Because the three great powers have
been, by constitutional design, ordained in this respect, "each department of the
government has exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere."167 Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the
law, and the judiciary has no power to make or execute the law."168 The principle of
separation of powers and its concepts of autonomy and independence stem from
the notion that the powers of government must be divided to avoid concentration
of these powers in any one branch; the division, it is hoped, would avoid any single
branch from lording its power over the other branches or the citizenry. 169 To
achieve this purpose, the divided power must be wielded by co-equal branches of
government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another
or others.170
Broadly speaking, there is a violation of the separation of powers principle when
one branch of government unduly encroaches on the domain of another. 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
other’s 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 department‘s 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 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 Executive‘s 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.1âwphi1 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."179 They 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 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 legislator’s 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?
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, 197or 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).199The 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 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
lump-sum fund from which they are able to dictate (a) how much from such fund
would go to (b) a specific project or beneficiary that they themselves also
determine. As these two (2) acts comprise the exercise of the power of
appropriation as described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly, said legislators
have been conferred the power to legislate which the Constitution does not,
however, allow. Thus, keeping with the principle of non-delegability of legislative
power, the Court hereby declares the 2013 PDAF Article, as well as all other forms
of Congressional Pork Barrel which contain the similar legislative identification
feature as herein discussed, as unconstitutional.
3. Checks and Balances.
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 President’s
power to veto an item written into an appropriation, revenue or tariff bill submitted
to him by Congress for approval through a process known as "bill presentment."
The President‘s item-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 law-making process is the
"submission of the bill to the President for approval. Once approved, it takes effect
as law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the
Chief Executive an integral part of the law-making power. His disapproval of a bill,
commonly known as a veto, is essentially a legislative act. The questions presented
to the mind of the Chief Executive are precisely the same as those the legislature
must determine in passing a bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department.
The Legislature has the affirmative power to enact laws; the Chief Executive has the
negative power by the constitutional exercise of which he may defeat the will of the
Legislature. It follows that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be confined to rules of
strict construction or hampered by the unwise interference of the judiciary. The
courts will indulge every intendment in favor of the constitutionality of a veto in the
same manner as they will presume the constitutionality of an act as originally
passed by the Legislature. (Emphases supplied)
The justification for the President‘s 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 branch‘s role in the budgetary
process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme
Court characterized the President‘s item-power as "a salutary check upon the
legislative body, calculated to guard the community against the effects of factions,
precipitancy, or of any impulse unfriendly to the public good, which may happen to
influence a majority of that body"; phrased differently, it is meant to "increase the
chances in favor of the community against the passing of bad laws, through haste,
inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there
exists a proper "item" which may be the object of the veto. An item, as defined in
the field of appropriations, pertains to "the particulars, the details, the distinct and
severable parts of the appropriation or of the bill." In the case of Bengzon v.
Secretary of Justice of the Philippine Islands,210 the US Supreme Court characterized
an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific
appropriation of money, not some general provision of law which happens to be
put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the
President may be able to exercise his power of item veto, must contain "specific
appropriations of money" and not only "general provisions" which provide for
parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item
characterized by singular correspondence – meaning an allocation of a specified
singular amount for a specified singular purpose, otherwise known as a "line-
item."211 This treatment not only allows the item to be consistent with its definition
as a "specific appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the existing
Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations
which state a specified amount for a specific purpose, would then be considered as
"line- item" appropriations which are rightfully subject to item veto. Likewise, it
must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such component to
be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed
out, a valid appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose, e.g., MOOE
(maintenance and other operating expenses), in which case the related purposes
shall be deemed sufficiently specific for the exercise of the President‘s item veto
power. Finally, special purpose funds and discretionary funds would equally square
with the constitutional mechanism of item-veto for as long as they follow the rule
on singular correspondence as herein discussed. Anent special purpose funds, it
must be added that Section 25(4), Article VI of the 1987 Constitution requires that
the "special appropriations bill shall specify the purpose for which it is intended,
and shall be supported by funds actually available as certified by the National
Treasurer, or t o be raised by a corresponding revenue proposal therein."
Meanwhile, with respect to discretionary funds, Section 2 5(6), Article VI of the
1987 Constitution requires that said funds "shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as
may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely
provide for a singular lump-sum amount to be tapped as a source of funding for
multiple purposes. Since such appropriation type necessitates the further
determination of both the actual amount to be expended and the actual purpose of
the appropriation which must still be chosen from the multiple purposes stated in
the law, it cannot be said that the appropriation law already indicates a "specific
appropriation of money‖ and hence, without a proper line-item which the President
may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its
purposes wasteful or undesirable, or approving the entire appropriation so as not to
hinder some of its legitimate purposes. Finally, it may not be amiss to state that
such arrangement also raises non-delegability issues considering that the
implementing authority would still have to determine, again, both the actual
amount to be expended and the actual purpose of the appropriation. Since the
foregoing determinations constitute the integral aspects of the power to
appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is
a lump-sum appropriation, the legislator‘s 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 ₱24.79 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 President‘s power of item veto. As
petitioners aptly point out, the above-described system forces the President to
decide between (a) accepting the entire ₱24.79 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 ₱24.79 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
President‘s 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 people‘s 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.
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 government-owned 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 post-enactment
authority and/or the individual legislator‘s control of his PDAF per se would allow
him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and
a legislator‘s 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 former‘s
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 System‘s 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 Constitution 225 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.226 Therefore, 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 State‘s 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.
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 people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of
the State to empower local government units (LGUs) to develop and ultimately,
become self-sustaining and effective contributors to the national economy. As
explained by the Court in Philippine Gamefowl Commission v. Intermediate
Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution to
the policy of local autonomy which is intended to provide the needed impetus and
encouragement to the development of our local political subdivisions as "self -
reliant communities." In the words of Jefferson, "Municipal corporations are the
small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and
more important, imbue them with a deepened sense of involvement in public
affairs as members of the body politic. This objective could be blunted by undue
interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the
spirit of the Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes
against the constitutional principles on local autonomy since it allows district
representatives, who are national officers, to substitute their judgments in utilizing
public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and
that "it is also a recognition that individual members of Congress, far more than the
President and their congressional colleagues, are likely to be knowledgeable about
the needs of their respective constituents and the priority to be given each
project."231 Drawing strength from this pronouncement, previous legislators
justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as to depressed areas
which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel
was originally established for a worthy goal, which is to enable the representatives
to identify projects for communities that the LGU concerned cannot afford. 233
Notwithstanding these declarations, the Court, however, finds an inherent defect in
the system which actually belies the avowed intention of "making equal the
unequal." In particular, the Court observes that the gauge of PDAF and CDF
allocation/division is based solely on the fact of office, without taking into account
the specific interests and peculiarities of the district the legislator represents. In this
regard, the allocation/division limits are clearly not based on genuine parameters of
equality, wherein economic or geographic indicators have been taken into
consideration. As a result, a district representative of a highly-urbanized metropolis
gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively "underdeveloped" compared to the former. To
add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President – who do not
represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrel‘s original intent
which is "to make equal the unequal." Ultimately, the PDAF and CDF had become
personal funds under the effective control of each legislator and given unto them
on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF
and PDAF conflicts with the functions of the various Local Development Councils
(LDCs) which are already legally mandated to "assist the corresponding sanggunian
in setting the direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction."234 Considering that LDCs are
instrumentalities whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not be overridden nor
duplicated by individual legislators, who are national officers that have no law-
making authority except only when acting as a body. The undermining effect on
local autonomy caused by the post-enactment authority conferred to the latter was
succinctly put by petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and
initiate projects on his own, and even take sole credit for its execution. Indeed, this
type of personality-driven project identification has not only contributed little to
the overall development of the district, but has even contributed to "further
weakening infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local
matters and thereby subvert genuine local autonomy, the 2013 PDAF Article as well
as all other similar forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns
to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now,
amended by PD 1993), which respectively provide for the Malampaya Funds and
the Presidential Social Fund, as invalid appropriations laws since they do not have
the "primary and specific" purpose of authorizing the release of public funds from
the National Treasury. Petitioners submit that Section 8 of PD 910 is not an
appropriation law since the "primary and specific‖ purpose of PD 910 is the creation
of an Energy Development Board and Section 8 thereof only created a Special Fund
incidental thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869
is neither a valid appropriations law since the allocation of the Presidential Social
Fund is merely incidental to the "primary and specific" purpose of PD 1869 which is
the amendment of the Franchise and 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
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 ₱150,000,000.00 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-à-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 ₱150,000,000.00" (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 ₱24.79 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
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
delegate‘s authority and prevent the delegation from running riot. 247 To be
sufficient, the standard must specify the limits of the delegate‘s 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 President‘s
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 grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution
may be readily examined under the current parameters of discussion, the Court which read as follows:
proceeds to resolve its constitutionality.
ARTICLE II
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 Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
development projects and second, to finance the restoration of damaged or implements a policy of full public disclosure of all its transactions involving public
destroyed facilities due to calamities, as may be directed and authorized by the interest.
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 ARTICLE III Sec. 7.
Presidential Social Fund only for restoration purposes which arise from calamities,
the first indicated purpose, however, gives him carte blanche authority to use the
The right of the people to information on matters of public concern shall be
same fund for any infrastructure project he may so determine as a "priority". Verily,
recognized. Access to official records, and to documents and papers pertaining to
the law does not supply a definition of "priority in frastructure development
official acts, transactions, or decisions, as well as to government research data used
projects" and hence, leaves the President without any guideline to construe the
as basis for policy development, shall be afforded the citizen, subject to such
same. To note, the delimitation of a project as one of "infrastructure" is too broad
limitations as may be provided by law.
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
The Court denies petitioners‘ submission.
of a system, especially public services and facilities (such as highways, schools,
bridges, sewers, and water-systems) needed to support commerce as well as
economic and residential development."253 In fine, the phrase "to finance the Case law instructs that the proper remedy to invoke the right to information is to
priority infrastructure development projects" must be stricken down as file a petition for mandamus. As explained in the case of Legaspi v. Civil Service
unconstitutional since – similar to the above-assailed provision under Section 8 of Commission:256
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, While the manner of examining public records may be subject to reasonable
as amended by PD 1993, remains legally effective and subsisting. 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
D. Ancillary Prayers. 1. 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
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
agency discretion. The constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.
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 –
But what is a proper case for Mandamus to issue? In the case before Us, the public
petitioners equally pray that the Executive Secretary and/or the DBM be ordered to
right to be enforced and the concomitant duty of the State are unequivocably set
release to the CoA and to the public: (a) "the complete schedule/list of legislators
forth in the Constitution.
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 The decisive question on the propriety of the issuance of the writ of mandamus in
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x this case is, whether the information sought by the petitioner is within the ambit of
Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, the constitutional guarantee. (Emphases supplied)
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 Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been
clarified that the right to information does not include the right to compel the
preparation of "lists, abstracts, summaries and the like." In the same case, it was
stressed that it is essential that the "applicant has a well -defined, clear and certain
legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court
cannot grant a particular request for information. The pertinent portions of
Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are
entitled to "access to official records," the Constitution does not accord them a
right to compel custodians of official records to prepare lists, abstracts, summaries
and the like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing demanded
and that it is the imperative duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required act must be clear
and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203;
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on
the part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of
mandamus actions, the Court finds that petitioners have failed to establish a "a
well-defined, clear and certain legal right" to be furnished by the Executive
Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latter‘s 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 Court‘s 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
custodian‘s 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, off-budget, 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 Executive‘s 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 Court‘s 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 Court‘s 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 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 Court‘s
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 DBM‘s 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 DBM‘s 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 Decision’s 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.
As a final point, it must be stressed that the Court‘s 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 non-
delegability 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
Court‘s bounden duty and no other‘s.
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 post-enactment 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 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.
subjected to the custodian‘s 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.

Accordingly, the Court‘s 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